A MANUAL OF CANON LAW BY REV. MATTHEW RAMSTE1N, S.T. Mag., J.U.D. OF THE ORDER OF FRIARS MINOR CONVENTUAL + + ++ + ++ + + Author of The Pastor and Marriage Cases TERMINAL PRINTING i PUBLISHING CO. 41 First St., Hoboken, N. J. 1947 Mt. A-gel Abbey St. Benedict, Oregon 97373 BQV R 3k IMPRIMI POTEST Anthony Hodapp, O.F.M. Conv. Minister Provincia! NIHIL OBSTAT Stephen W. Findlay, O.S.B., J.C.D. Censor Deputatus IMPRIMATUR Φ John F. Noll, D.D. Bishop of Fort H'ayne Fort Wayne, August 27, 1947 COPYRIGHT 1947 BY MATTHEW RAMSTEIN ORDER FRIARS MINOR CONVENTUAL Printed in the United States of America Pagan Rome once said: Salus REIPUBL1CA E Suprema Lex but Christian Rome replied: Salus ANIMARUM Suprema Lex and Christian Rome survived. PREFACE The present manual aims to give the reader a general knowledge of the laws of the Church as these arc found in the Code of Canon Law. Although the Code is already a fairly large volume in itself so that there may be some who will question the possibility of imparting even the elements of church law in a handbook of this size, nevertheless let it be noted that one-volume manuals arc usualh relied upon to convey the essentials of sacred liturgy. What is possible in the one case ought to be possible in the other. All the more is this true because the disciplinary norms of the Code are rar less numerous than the liturgical laws contained in the seven volumes of the Decreta Authentica. Obviously, it suffices that a manual contain a judicious selection of material and a reasonable amount of explanation of the same. As to the material chosen for this manual, let it be observed that no chapter of the Code has been entirely overlooked. Certain subjects, it is true, called for more intensive treatment than others because of their more frequent application in practise, such as the law on pastors, on marriage, on censures, etc., and this necessitated a restriction of other material. Yet, because no law of the Code is so remote from life that it may not find application at some time or other, so that it is always possible that the reader may need to know either some canons which have been entirely omitted in this manual, or only incompletely cited, or cited in the author’s own words, for that reason the policy has been followed of referring constantly to the Code canons under the various headings and subjects discussed, to the end that these references may serve as so many sign posts directing the reader quickly and easily to the proper places of the Code itself, should he desire to read through some chapter in its entirety, or to assure himself of the complete wording of some canon in particular. Whereas, if he prefers an English text of the Code, he is referred PR E FAC E at this time to Fr. Woywod’s two-volume work to be found in the manual’s bibliography, where he may easily find any canon of the Code restated in accurate and excellent English. The manual's commentary on the material selected ought to prove adequate for those who desire simply a working knowledge of the law. Should further commentary be desired, since daily life abounds with more casuistry than can he compressed within the covers of a single volume, the reader will find that the manual carries an extensive bibliography in which arc listed over 250 post­ Code canonical works in the English language alone, while more than 1200 articles and consultations on canon law have been catalogued and indexed, these having been taken from American, periodicals intended for the use of the clergy. Thus it is hoped that the bibliography will prove helpful to> those readers who may require of the manual more than a general knowledge of the Code, and more than a ready reference guide. In particular, it is believed that the vast amount of reading material latent in the bibliography will be especially welcome to members of the diocesan curia, officials of the diocesan court, major superiors in clerical religions, and readers of papers at theological conferences. The Author. 41 First Street, Hoboken, New Jersey, August 1, 1947 LIST OF ABBREVIATIONS Ada—Ada Afoctolicae Sedit. A.A.S.—Ada Afiotlolicae Sedit. A.S.S.—Ada Sanctae Sedit. ('ode Comm., or Pon(. Comm.—Pontifical Committee for the Authentic Interpretation of the Canons of the Code. H.O.—Holy Office. EK.—The American Ecclesiastical Review. HPR.— The Homiletic and Pastoral Monthly. CST.—The Casuist. Fontet—Fontej Codicit Juri/ Canonici by Cardinals Gasparri and Serédi. Other abbreviations found in this book are believed to be *elf-exp|anatorv. TABLE OF CONTENTS INTRODUCTORY PART Chapter Art. Art. Art. Art. Art. Art. I. The Comparative Nature of Canon Law.............................. i I. The Nature of Law in General................................................. 1 IL The Nature of Canon Law in Particular............................... 2 III. Canon Law as a Science........................................................... 3 IV’. Divisions of Canon Law............................................................ 4 V. Sources of Canon Law.......................'....................................... 4 V’l. Importance of Canon Law Knowledge.................................. 5 Chapter II. The Principles of Public Church Law.............................. Art. I. Canon Law Is Mandatory Law................................................. Art. II. Canon Law Is Sovereign Law................................................. Art. III. Canon Law Is Supreme Human Law....................................... Art. IV. History of Ecclesiastical Authority........................................... 7 7 10 14 16 Chapter HI. The History of Canos Law................................................. 21 Art. I. Collections of the Eastern Church.......................................... 22 Art. 11. Collections of the Western Church.......................................... 24 Chapter IV. The Code of Canon Law in General.................................. Art. I. Origin of the Code....................................................................... Art. II. Material Arrangement of the Code....................................... Art. III. Authority of the Code.................................................................. Art. IV. Bibliography ......... 38 38 39 40 44 BOOK I—ON GENERAL NORMS Chapter I, Ecclesiastical Laws..................................................................... Art. I. Nature of Ecclesiastical Laws.................................................. Art. II. Division of Ecclesiastical Laws............................................... Art. III. The Promulgation of Laws........................................................ Art. IV. Superiors with Legislative Power............................................. Art. V. Persons Subject to Ecclesiastical Laws..................................... Art. V’l. Interpretation of Ecclesiastical Laws..................................... Art. VII. Cessation of Laws....................................................................... Art.VlII. Precepts. Decrees, Instructions, Rules, etc............................. Chapter II. Art. I. Art. II. Art. HI. Art. IV’. 88 88 88 89 90 91 93 96 96 Custom........................................................................................... 99 Custom Defined.............................................................................. 99 Division of Customs..................................................................... 100 Requisites of a Lawful Custom................................................100 Cessation of Customs................................................................... 102 Il Chapter Art. Art. Art. Art. Art. CONTENTS III. The Computation of Time................................................... 103 I. Day, Week, Month and Year Defined....................................103 II. Computing the Hours of the Day......................................... 10+ III. Computing the Beginning and End of SeveralWeeks, etc....106 IV. Temfius Utile and Temfut Continuum................................ 10/ V. Physical and Moral Computation of Time............................ 108 Chapter IV. Favors........................................................................................... 1°9 Art. I. Favors in General (Rescripts)................................................H" Art. II. Favors in Particular (Privileges and Dispensations)......... 117 BOOK II—ON PERSONS Preliminary Chapter............................................................................................124 Art. I. General Principles Applicable to Physical Persons................ 124 Art. II. General Principles Applicable to Moral Persons.................... 130 Art. III. General Principles Applicable to Both Physical and Moral Persons ......................................................................... 133 PART I—ON CLERICS (Section I—On Clerict in General) Chapter Art. Art. Art. Art. Art. I. The Clerical State...................................................................... 139 I. Cleric Defined ............................................ ...139 II. Power of Orders and of Jurisdiction...................................... 140 Ill. Nature of the Sacred Hierarchy................................................ 141 IV. Entrance into the Sacred Hierarchy.......................................... 142 V. Non-Catholic Systems of Church Government....................... 1+3 Chapter II. Ecclesiastical Offices............................................................... 147 Art. I. Nature of an Ecclesiastical Office............................................ 147 Art. II. Conferment of Ecclesiastical Offices..................................... ...148 Art. III. Loss of Ecclesiastical Offices..................................................... 157 Chapter III. Ordinary and Delegated Power............................................ 160 Art. I. Exercise of Orders........................................................................160 Art. II. Exercise of Jurisdiction............................................................... 160 Chapter IV. Rights, Privileges and Duties Common to All Clerics....169 Art. I. Common Rights of Clerics.......................................................... 169 Art. II. Common Privileges of Clerics..................................................... 169 Art. 111. Common Obligations of Clerics.................................................. 173 Art. IV. Reduction of Clerics to the Lay State......................................... 184 (Section II—On Clerics in Particular) Chapter I. The Roman Pontiff..................................................................... 186 Art. I. Nature of the Papal Power......................................................... 187 Art. II. Major Causes .............................................................................. 188 Art. III. Various Forms and Names ofPapalActs.................................... 189 CONTENTS Art. Art. Art. Art. id IV. Election of the Roman Pontiff....................................................191 V. Papal Offices, How Vacated....................................................... 193 VI. Papal Titles and Insignia........................................................... 195 VII. The Pope as Temporal Sovereign............................................ 194 Chapter II. The Pope’s Assistants at Rome................................................. 196 Art. I. The Cardinals of the Holy Roman Church............................ 196 Art. II. The Roman Curia........................................................................ 201 Chapter III. The Pope’s Assistants Outside of Rome............................ 216 Art. I. Papal Legates ............................... ·................................................ 216 Art. II. Patriarchs, Primates and Archbishops...................................... 218 Art. III. Vicars and Prefects Apostolic..................................................... 223 Art. IV. Apostolic Administrators ......................................................... 224 Art. V. Inferior or Lower Prelates....... ....................... 22S Art. VI. Ecumenical, Plenary and Provincial Councils...................... 227 Chapter IV. Bishops ...................................................................................... .229 Art. I. Nature of the Episcopal Office....................................................229 Art. IL Appointment of Bishops............................................................... 232 Art. III. Qualifications Required in Episcopal Candidates................... 234 Art. IV. Powers of Bishops......................................................................... 234 Art. V. Duties of Bishops......................................................................... 237 Art. VI. Privileges of Bishops................................................................... 239 Art. VII. Loss of Episcopal Office............................................................... 240 Art.VIII. Titular Bishops ........................................................................... 241 Chapter V. The Bishop's Assistants in the Government of the Diocese ..................................... 242 Art. I. The Episcopal Curia.................................................................... 242 Art. II. The Episcopal Senate.................................................................. 253 Chapter VI. The Bishop's Assistants in the Sacred Ministry...............261 Art. I. Pastors ........................................................................................... 261 Art. II. Parochial Vicars ........................................................................ 277 Art. III. Chaplains ..................................................................................... 281 PART II—ON RELIGIOUS Chapter I. The Religious State in General............................................. 284 Art. I. Nature of the Religious State................................................... 284 Art. II. History of the Religious State................................................... 286 Art. III. Technical Terms Defined........................................................... 292 Art. IV. Precedence Among Religious..................................................... 296 Chapter II. Erection and Suppression of Religions, Provinces, etc........ 298 Art. I. Religions of Diocesan Law....................................................... 298 Art. II. Religions of Papal Law............................................................... 300 Chapter III. Government in Religions......................................................... 304 Art. I. External Government of Religious.......................................... 304 Art. II. Spiritual Government of Religious.......................................... 315 Art. III. Administration of Temporal Goods.......................................... 322 CONTENTS IV ..... 328 ..... 328 ..... 338 ..... 347 Art. Nature of Religious Profession........................................... ..... 347 ..... 348 ..... 349 ..... 350 ..... 351 ..... 355 I. The Obligations and Privileges Chapter VI. of Religious............... ..... 358 ..... 358 Art. III. Religious Cardinals, Bishops and Pastors............................... 374 Chapter VII. Departure from a Religion............................................ .... 377 Art. I. Voluntary Departure ............................................................. .... 377 Art. II. Compulsory Departure ......................................................... .... 383 Men or Women Who Lead a Common Life Manner of Religious but without Vosvs....392 PART III—ON THE LAITY Associations of the Faithful in Générai...............................397 Association of the Faithful in Particular......................... 401 Third Orders Secular..................................................................401 Confraternities and Other Pious Unions................................. 402 Archconfraternities and Primary Unions.............................. 405 Chapter VIII. Societies of after the Chapter 1. Chapter II. Art. I. Art. II. Art. II. BOOK 111—ON ECCLESIASTICAL THINGS Baptism ...................................................................................... 407 Chapter 1. Chapter II. Confirmation ............................................................................ .. Chapter III. Holy Mass..............:................................................................ .. Chapter IV. Holy Communion ............................ 430 Chapter V. Confessions and Indulgences..................................................... 422 • Art. I. Confession ........................................................................................ Art. II. Indulgences ................................................................................... .. Chapter VI. Extreme Unction.................................................................... .. Chapter VII. Holy Orrers........................................................................... _..429 Art. I. Minister of Ordination................................................................ .. Art. II. Subject of Ordination.................................................................. 433 Art. HI. Preliminaries to Ordination........................................................... Art. IV. Time, Place and Registration ef Ordination.......................... 440 CONTENTS Chapter VIII. Matrimony ............................................................................. 442 Art. I. Nature of Marriage................................................................... 443 Art. II. Preliminaries to Marriage......................................................... 4SI Art. III. Impediments in General............................................................... 456 Art. IV. Impediments in Particular..........................................................468 Art. V. Marriage Consent........................................................................ 484 Art. VI. Solemnization of Marriage......................................................... 491 Art. VII. Separation of the Spouses............................................................ 501 Art.VIII. Validation of Marriage............................................................... SOS Appendix—The Sarramentalt ............................................................................ 512 Chapter IX. Sacred Places...........................................................................515 Art. I. Churches ....................................................................................... 515 Art. II. Oratories ....................................................................................... 518 Art. III. Altars ............................................................................................. 520 Chapter X. Ecclesiastical Burial................................................................ 521 Art. I. Cemeteries Considered as Sacred Places................................. 522 Art. II. The Church of Burial................................................................ 524 Art. III. The Cemetery of Burial.............................................................525 Art. IV. Funeral Taxes and the Quarta Funeraria................................ 526 Art. V. Denial of Christian Burial....................................................... 527 Chapter XI. Holidays and FastDays......................................................... 528 Art. I. Holydays ....................................................................................... 529 Art. II. Days of Fast and Abstinence..................................................... 530 Chapter XII. Divine Cult............................................................................. 532 Art. I. Cult of the Blessed Sacrament................................................. 532 Art. II. Sacred Relics................................................................................. 533 Art. III. Sacred Furnishings....................................................................... 534 Chapter XIII. The Teaching Authority of the Church...................... 536 Art. I. Sacred Preaching.......................................................................... 536 Art. II. Seminaries ..................... ;............................................................... 537 Art. III. Censorship and Prohibition of Books......................................544 Art. IV. Profession of Faith—Oath Against Modernism.................... 547 Chapter XIV. Ecclesiastical Institutions................................................. 548 Art. I. Ecclesiastical Benefices................................................................ 548 Art. II. Institutions Other Than Benefices..............................................552 Chapter Art. Art. Art. Art. Art. XV. The Temporal Goods of the Church................................ 555 I. Nature and Kinds of Ecclesiastical Goods.......................... 555 II. '1’he Right of the Church to Temporalities.............................. 556 III. The Owner of Ecclesiastical Goods....................................... 560 IV. Acquisition of Ecclesiastical Goods......................................... 561 V. Administration of Ecclesiastical Goods.................................. 56$ CONTENTS VI BOOK IV—ON PROCESSES PART I—ECCLESIASTICAL TRIALS Chapter Art. Art. Art. Art. Art. Art. I. Trials in General............... ...... .................................................. 578 I. Nature and Kinds of Ecclesiastical Trials............................... 578 II. The Competent Forum............................................................... 580 III. Lower Courts and Higher Courts.............................................. 582 IV. Introductory Stage of the Trial.................................................. 591 V. Probative Stage of the Trial...................................................... 595 VI. Final Stage of the Trial............................................................. 603 Chapter II. Civil Trials in Particular..................................................... 610 Chapter Art. Art. Art. Art. III. Criminal Trials in Particular............................................. 612 I. Preliminaries to a Criminal Trial............................................. 612 II. Construction of a Criminal Trial............................................. 615 III. Criminal Trials in Clerical Exempt Religions...................... 617 IV. Some Doubtful Points of Law..................................................... 617 Chapter Art. Art. Art. IV. Marriage Trials in Particular.......................................... 619 I. The Formal Marriage Trial.................................................... 619 II. Summary Marriage Trials......................... «....626 III. Extrajudicial Marriage Processes............................................. 627 Chapter V. Ordination Trials in Particular......................................... 631 PART II—THE BEATIFICATION AND CANONIZATION OF THE SERVANTS OF GOD Chapter I. Preliminary Notions..................................................................632 Chapter II. The Procedure of Beatification........................................... 638 Art. I. Causes of Confessors................................................................. 638 Art. II. Causes of Martyrs....................................................................... 646 Chapter III. The Procedure of Canonization..........................................648 PART III—EXTRAJUDICIAL PROCESSES Chapter I. The Removal and Transfer of Pastors....................................653 Art. I. Formalities to Be Observed in All Removals and Transfers ............................................................................ 653 Art. II. Removal of Irremovable Pastors............................................. 655 Art. III. Removal of Removable Pastors................................................. 657 Art. IV. Transfer of Pastors.................................................................... 658 Chapter Art. Art. Art. Art. II. Extrajudicial Punishment of Certain Offenses...................660 I. Punishment of Non-Residence..................................................... 660 II. Punishment of Concubinage.........................................................661 III. Punishment of Pastoral Negligence.......................................... 662 IV. Suspension Ex Informata Confdfntia...................................... 663 CONTENTS VH BOOK V—ON OFFENSES AND PENALTIES Chapter Art. Art. Art. Art. I. Offenses in General................................................................... 66$ I. Nature of an Offense................................................................... 66S IL Offenses Classified.......................................................................... 669 HI. Principles of Imputability........................................................... 670 IV. Attempted Offenses....»................................................................... 674 Chapter II. Penalties in General................................................................ 676 Art. I- Nature of an Ecclesiastical Penalty.............................. i......... 676 Art. II. Division of Penalties.................................................................. 677 Art. III. Superiors With Punitive Poweis............................................. 695 Art. 1V. Subject of Ecclesiastical Penalties............................................. 695 Art. V. Interpretation of Penalties......................................................... 696 Art. VI. The Application of Penalties..................................................... 696 Art. VII. Requisites of a Just Penally......................................................697 Art.VIII. Redress Against Penalties........................................................... 697 Art. IX. Cessation of Penalties................................................................. 69$ Chapter III. Offenses and Penalties in Particular.................................. 705 Art. I. Heresy ..........................................................................................705 Art. 11. Prohibited Books........................................................ -................ 706 Art. III. Attempted Marriage...................................................................... 707 Art. IV. Non-Catholic Education of Offspring...................................... 709 Art. V. Profanation of the Sacred Species............................................ 710 Art. VI. Violation of the Privilege of the Forum................................ 710 Art. VII. Forbidden Societies....................................................................... 711 Art.VIII. Violation of Papal Enclosure.................................................... 712 Art. IX. Assault on Clerics........................................................................ 713 Art. X. Religious Apostates and Fugitives............................................ 714 Art. XI. Abortion ....................................................................................... 714 Art. XII. Unlawful Alienations................................................................... 715 Art.XIII. Abandonment of the Clerical Garb.......................................... 716 Art. XIV. Concubinage, Non-Residence,Pastoral Neglect......................... 716 Art. XV. Violation of the Sacramental Seal........................................... 717 Art. XVI. Abtolutia Complicis...................................................................... 717 Art.XVH. Crime of Solicitation.................................................................... 71S List of Latae Sententiae Penalties.................................................................... 720 Faculties of American Bishops........................................................................ 723 Faculties of the Apostolic Delegate...................................................................736 Index ....................................................................................................................... introductory f-^art The law by which the Catholic Church throughout the world is governed at the present day is found in the Code of Canon Law. It is our purpose to study the legislation of the Code somewhat in detail. But before doing so it may be well to consider, first of all, some general aspects of church law. In four chapters of this introduction we shall discuss: 1) the natureof canon law as compared with other kinds of law : 2) the natureof canon law considered in itself; 3) the history of canon law; 4)the Code of Canon Law in general. Chapter I THE COMPARATIVE NATURE OF CANON LAW Here let us consider: (2) the difference between science of canon law; (4) sources of canon law; (6) (1) the meaning of law in general; divine, civil, and canon law; (3) the the divisions of canon law; (5) the the importance of its study. ART. 1. The nature of law in general. Law, understood in its broadest sense, is a rule of action. Therefore, any principle which governs orderly activity, whether of animate or inanimate creatures, may in that general sense be called a law. And so, one speaks of the laws of gravity, the laws of diges­ tion, sensation, thought, etc. But in a more restricted sense we mean by the word law a rule of human conduct. It can then be defined as a command imposed by a legitimate authority that exacts obedience. According to wheth­ er the commanding authority is God, the civil ruler, or the Church, wc have divine law, civil law, and canon law, or church law. Sometimes the word law, understood as a rule of human conduct, is employed loosely to indicate a norm, or set of norms, agreed upon by private individuals for the regulation of conduct one toward another, as when wc speak of the laws of etiquette, the laws of games and sports, the by-laws of a private corporation, etc. But in the strictest sense we mean by law the command of the highest authority in a necessary society, i. e„ in Church or State. But the political subdivisions of these societies may possess true lawmaking power although in a subordinate manner, i. e., as long as their commands do not conflict with the laws of the supreme rulers, e. g., city ordinances, diocesan statutes, etc. i 2 NATURE OF CANON LAW ART. II. Nature of canon law in particular. Canon law takes its name from the Greek kanwn, a word which in its original and material sense indicated an instrument used by carpenters and architects for drawing and measuring lines, much as we use our common ruler today. The word later took on a figurative meaning to signify any norm or standard in the abstract. The early Church thus spoke of the canon of Sacred Scripture, the canons of faith, the canons of morals, etc. The disciplinary measures enacted by church councils were early referred to as canons of discipline, but in time simply as canons. And by the ninth century the totality of all these disciplinary norms was universally spoken of as canon law. Canon law, then, is that body of laws by which the Church of Christ is governed, and which is proposed and enacted by the ecclesiastical superiors. It differs from divine law which has God for its author, whereas canon law proceeds from the lawmakers in the Church. However, some precepts of the divine law arc proposed to us by the Church, and, insofar as these precepts arc incorporated into her own legisla­ tion, canon law will at the same time be divine law. Thus, the canonical impediment to marriage between parent and child is of divine natural law, whereas the precept to confess one’s sins in the sacrament of penance, although found in the Code of Canon Law, is of divine positive, or revealed law. To the extent that canon law merely restates the divine law, it cannot be changed, and the Church cannot dispense from it. But, insofar as canon law is purely human law, it can be modified, and even abrogated entirely, e. g., the former marriage impediment between third cousins. Canon law differs also from civil law. First, because the two laws have different authors, the Church and the State. Secondly, because they tend to different ends, canon law looking to things eternal, the salvation of souls, while civil law looks to things tem­ poral, the bodily welfare of the citizens. At the same time both laws strive to maintain external order within the two societies, Church and State. A glance at the Code’s table of contents will show how diverse is the subject matter with which canon law deals from that with which civil law is concerned. J NATURE OF CANON LAW 3 ART. III. Canon law considered as a science. Besides indicating a body of legislation, canon law also desig­ nates the systematic study and presentation of church law. In this latter sense it is closely allied with other branches of sacred science. Dogmatic theology proposes norms of belief; canon law, norms of conduct. Yet theology lays the foundations upon which the structure of church law is built, and gives the latter its philosophy and reason for existence. Canon law in turn supports, defends, safeguards theology, e. g., the law on forbidden books, on preaching and confession faculties, on the qualifications of the sacred ministers, the laws that safeguard the worthy administration and reception of the sacraments, etc. Moral theology, like canon law, proposes norms of conduct, but these latter arc intended for the internal forum of conscience, while the former maintain external order in the ecclesiastical society. But since practically all canon law binds also in conscience, to that extent it is simultaneously the concern of the moralist. Hence, it is not surprising that the two studies often overlap, and that what is learned in the canon law class is often repeated in the moral theology class, and vice versa. Pastoral theology is a composite of dogma, moral, canon law, and liturgy as applied directly to the care of souls. It restricts itself to that part of church law which is of immediate interest to pastors, so that what church law it does review will be somewhat limited in its content. Liturgy, insofar as it is a body of laws proceeding from the church authorities, ought to be called canon law. However, its disciplinary norms concern only the proper maintenance of public worship. And because of the minutiae of its countless rulings, liturgy has been treated for centuries as a separate branch of church legisla­ tion, and as a study distinct from canon law. ART. IV. Divisions of canon law. Canon law is divided: ( 1 ) By reason of its author into divine canon law, and 4 NATURE OF CANON LAW human canon law, as wc have seen. In a certain sense we may also speak of civil canon law. The Church finds it helpful today, as in the past, to incorporate into her legislation many civil law norms. Thus, the civil law on contracts which obtains in any state or nation, the Church generally adopts for herself, to he observed by the church authorities of the particular country for regulating church contracts. Whenever the Church thus adopts civil law, and makes it a part of her own legislation, we say that she canonizes civil law. (2) By reason of extent into common law and particular law. The former is that which is law for the universal Church, c. g., the laws of the Code. The latter is law for a particular country, or a definite group of persons, c. g., the decrees of plenary and provincial councils, diocesan statutes, the constitutions of religious Orders. (3) By reason of form into the written and the unwritten law. The latter is also called custom. (4) By reason of time into the old and the new law. The latter is the Code law, the former is pre-Codc law. (5) By reason of function into public and private law. The former regulates the relations between Church and State; the latter regulates matters within the Church alone. Wc shall summarize public church law in the next chapter. ART. V. Sources of canon law. We can distinguish between the efficient, the constituent, the supplementary and the documentary sources of canon law. The efficient sources of canon law are simply the lawgivers in the Church. They arc: 1) the Roman Pontiff; 2) oecumenical coun­ cils; 3) plenary councils; 4) provincial councils; 5) residential bish­ ops; 6) abbots and prelates nullius', 7) permanently appointed Apos­ tolic Administrators; 8) general chapters in clerical exempt religions. All these lawgivers will receive more detailed consideration later in our manual. Ecclesiastical superiors other than those just mentioned arc not empowered to enact laws. They may at the most issue commands which arc temporary in nature, and which are called precepts. NATURE OF CANON LAW 5 The constituent sources of canon law are those principles which serve as material in the enactment of new legislation. They are: 1) the natural law; 2) the divine positive, i. c., the revealed law of the Scriptures; 3) primitive church traditions; 4) custom; 5) civil legislation; 6) the writings or commentaries of canonists; 7) adjudi­ cation. i. c., the decisions of the Roman courts; S) the style, practise and decisions of the Roman Congregations given in particular in­ stances to cover particular cases. The supplementary sources of canon law arc those principles to which one may have recourse to supply for the silence of the law. They arc: 1) the general principles of natural law applied with canonical equity; 2) church laws framed for parallel situations; 3) the decisions of the Roman Congregations handed down in similar instances; 4) the common and approved teaching of canonists. The documentary sources of canon law arc those collections and compilations which contain the text of the law as distinguished from commentaries on the law. In Chapter Ill we shall consider these collections at greater length. ART. VI. Importance of Canon Law Knowledge In a certain sense all Catholics ought to be familiar with the laws of the Church, both the laity and the clergy. The laity ought to know at least something of that legislation which immediately concerns themselves, such as the common precepts of the Church, the laws on Sunday observance, fast and abstinence, forbidden books, the marriage laws, etc. It is the duty of pastors to acquaint their people with all such church commands. The clergy, more than the laity, arc governed in their everyday life by canon law. Hence, Pope Celestine says: Nulli sacerdoti licet sacros canones ignorare. All without exception ought to understand the common privileges and duties of clerics; all should have a work­ ing knowledge of the law governing the sacraments, public cult, and censures. 6 NATURE OF CANON LAW In addition, those who hold offices must know what rights and duties attach to their individual offices, whether as pastors, assistant pastors, chaplains, diocesan officials, directors of confraternities, seminary officials, church property administrators, or members of the diocesan court. Finally, there are certain posts which cannot be adequately filled save by priests of exceptional canonical learning, as we shall see in the course of this manual. Chapter II THE PRINCIPLES OF PUBLIC CHURCH LAW We have tried thus far to understand the nature of church law by comparing it with divine law and civil law. It remains to ask ourselves what the nature of canon law is when considered in itself. We shall see that it is not a body of by-laws framed by some private corporation within the State, but that like the civil law itself it is mandatory law, sovereign law, and even supreme law with respect to civil enactments. It is upon these assumptions that relations between Church and State are possible and even necessary. 1 he government of the Church from without, i. e., in her dealings with the civil authorities, is determined by a set of principles derived from dogmatic theology in the treatise De Ecclesia, the totality of which principles, or norms, constitutes what is called public church law, which we propose to review briefly in the present chapter. We shall consider: 1) the mandatory character of canon law; 2) its sovereign character; 3) its prerogative of supremacy over civil law; 4) the history of the exercise of ecclesiastical authority, and therefore, the historical vicissitudes of canon law with respect to civil recognition. ART. I. Canon law is mandatory law. By this we mean to say that canon law is not a mere set of counsels. Nor is it what might be called conventional law, i. e., rules of action agreed upon by private persons for the regulation of conduct one toward another, as are the laws of etiquette, the laws of games and sports, etc. Canon law is mandatory law in the sense that it is law imposed by an authority which commands obedience, and which secures that obedience by coercion if need be. Our proofs are from Scripture, the Acts of the Apostles, and the ageless practise and teaching of the Church herself. 7 s PUBLIC CHURCH LAW Sacred Scripture—While it is true that in one place our Lord only commissions the Apostles to teach and baptize: All power is giv­ en to Me in heaven and in earth. Going, therefore, teach ye all na­ tions, baptizing them, etc. (Mt. XXVIII, 18-19), but is silent con­ cerning their right to command, yet from other texts it is clear that He conferred upon them the fullness of authority. They are vested with the same authority He possesses: As the Father hath sent Me, I also send you (Jn. XX, 21). But Christ, as God, had authority to command. And again : Amen 1 say to you, whatsoever you shall bind upon earth, shall be bound also in heaven; and whatsoever you shall loose upon earth, shall be loosed also in heaven (Mt. XVIII, 18). Our Lord here speaks of a moral binding, not a physical one, and makes no distinction between the binding of the intellect through authoritative doctrine and the binding of the will through commands. Elsewhere binding was clearly employed in the latter sense: They bind heavy and insupportable burdens, where our Lord refers to the laws of the Scribes and Pharisees (Mt. XXIII, 4). Finally, He that heareth you, heareth Me; and he that despiseth you, despiseth Me (Lk. X, 16). Our Lord does not distinguish between hearing the Apostles when they teach, and hearing them when they command. Example of the Apostles—The Apostles felt themselves em­ powered to issue laws and to govern the visible Church, not merely to explain with authority the teachings and commandments of God. In the first council of the Church, that held at Jerusalem, we find them enjoining upon the newly converted Christians That you abstain from things sacrificed to idols, and from things strangled (Acts XV. 29). In his epistles we see St. Paul constantly imposing com­ mands, e.g., concerning the qualifications of bishops (Tim. Ill, 2 sq.) ; regarding the duties of married people (I Cor. VII, 12 sq.) : con­ cerning the dress of women in church (I Cor. XI, 4 sq.). And writ­ ing to the Corinthians he says: Now I praise you, brethren, that in all things you are mindful of me; and keep my ordinances (praecepta) as I have delivered them to you (Cor. XI, 2). St. Paul, then, speaks explicitly of precepts, not counsels. This is further evident from the fact that their violation could be visited with punishment: IFhat will you? Shall I come to you with a rod, or in charity and in the spirit of meekness? (I. Cor. IV, 21). And having in readiness to avenge all disobedience (II Cor. X, 6); And if any man obey not our word by this epistle, note that man and do not keep company with him (II Thes. Ill, 14). Here the Apostle seems to refer to excommunication. Concerning the incestuous Corinthian, the Apostle serves warning on the faithful: to deliver PUBLIC CHURCH LAW 9 such a one to Satan for the destruction of the flesh (I Cor. V, 5). St. Paul throughout, we see, is threatening punishment against trans­ gressors of his directions. These must have been mandatory in character, for no one is punished for merely violating counsels. Practise of the Church—From primitive times the bishops, as successors of the Apostles, whether individually or gathered in councils, enacted norms for the government of the Church. It is true that in times of persecution these norms could not be enforced with penal sanctions. But when this later became possible, in the 4th century, we find them imposing both spiritual and tem­ poral punishments such as fines, banishment, etc. If the early Church preferred to speak of her disciplinary norms as canons avoiding the Greek word nomoi, which alone designated laws in the strict sense, this simply means that she preferred spon­ taneous obedience from the faithful, that she preferred to employ moral suasion rather than coercion, but not necessarily that she felt her self deprived of real coercive authority. Teaching of the Church—On this subject we have the following official pronouncements: 1 ) If any man shall say that baptised persons are free from either the written or the unwritten commands of the Church, so that they need not observe them unless they wish to do so of their own free will, let him be anathema (Counc. Trent, sess. VII, canon 8). 2) Pope John XXII condemned the proposition of Marsilius of Padua: The whole Church taken collectively can punish no man, unless the Emperor permits it (Const. Licet, Oct. 23, 1327; cfr. Denz, n. 499). 3) Pius IX condemned the following proposi­ tion: The Church has not the power of using force, neither has she any temporal power, direct or indirect (Syllabus of Errors, prop. 24) ; 4) Leo XIII in his encyclical Immortale says: In very truth Jesus Christ gave to His Apostles unrestrained authority in regard to things sacred, together with the genuine and most true power of making laws, as also the two-fold right of judging and punishing which flow from that power (Revera, Nov. 1, 1885; A. S. S. XVIII, 156); 5) The Code of Canon Law after recognizing supreme lawmaking power in the Pope (c. 218), and a subordinate legislative power in the bishops within their dioceses (c. 335), states in c. 2214: It is the original inherent right of the Church, which she exercises independ­ ently of any human authority to coerce her delinquent subjects with both spiritual and temporal penalties. 10 PUBLIC CHURCH LAW ART. II. Canon law is sovereign law. The laws of the Church arc sovereign laws in the sense that they in no wise depend for their validity or binding force upon the approval and sanction of the civil rulers. This is because, as we shall see, the Church is a sovereign society, called societas perfecta in Latin works on public church law. A society is sovereign if it can rightly claim no political superior over and outside of itself. To make such claim valid, the society must be able to show that it tends to an end which is not already a partial end pursued by a higher society, and that it has within itself all the means needed to pursue that end. Now the end which the Church prosecutes by divine command is the salvation of souls, an end which the State in no way concerns itself •with. It remains to prove that the Church, moreover, by the will of Christ her Founder, was given independence in carrying out her divine mission, namely, that Christ conferred upon the Church directly, and therefore, independently of the State, all powers needed, and all means required to achieve her end, the salvation of souls. 1 ) Nature of the Church—Christ, the Lord, willed His Church το be one in faith and doctrine. But adequate provision for such unity would not have been made had it been His intention to subordinate the Church to the State. For, as the history of the Protestant Reformation proves, where supreme ecclesiastical authority is vested in the secular ruler, there we have as many national Churches as we have distinct nations or States. For either the civil ruler will forbid his subjects the profession and practise of any religious faith save his own (cujus regio illius et religio), or where freedom of religious belief and practise is permitted in theory, he will, under the pretext of safeguarding the common welfare of the State or the rights of the citizens, dictate or at least restrain the doctrines, practises and activi­ ties of the Church in his territory. Hence, if purity of faith is to be preserved, if unity of doctrine is to mark the universal Christian Church, there must be in the Church by the will of Christ a super­ national authority which can suffer no interference from any civil government. 2) History of the Church—The sovereignty of the Church is mot new doctrine. It was defended already by the Apostles who, when commanded by the Synagogue to desist from preaching the Gospel, replied: We ought to obey God, rather than men (Acts V, PUBLIC CHURCH LAW 11 29). It was the issue in the struggles between Pope and Emperor in the Middle Ages. It has occasioned concordats between the Holy See and civil governments. 3) Teaching of the Church—Pius IX condemned the following two propositions: (1) The Church is nor a true and perfect society, entirely free; nor is she endowed with innate and perpetual rights of her own conferred upon her by her divine Founder; but it appertains to the civil pozver to define what are the rights of the Church, and the limits within which she may exercise those rights. (2) The ecclesiastical power ought not to exercise its authority without the permission and assent of the civil government {Syllabus of Errors, prop. 19, 20). Speaking of the Church, Pope Leo XIII says: This society is made up of men, just as civil society is, and yet is spiritual and super­ natural on account of the end for which it was founded, and the means by which it aims at attaining that end. Hence, it is distin­ guished and differs from civil society, and what is of the highest moment, it is a society chartered as of divine right, perfect in its nature and in its title, to possess in itself and by itself, through the will and loving kindness of its Founder, all needful provision for its maintenance and action. And just as the end at which the Church aims is by far the noblest of ends, so is its authority the most exalted of all authority, nor can it be looked upon as inferior to the civil power, or in any manner dependent upon it {Immortale, § Haec societas). In the opening lines of the Bull Providentissime Mater Ecclesia whereby Benedict XV promulgated the Code of Canon Law we again find reference to the sovereignty of the Church: Most provident Mother Church, having been established by Christ her Founder in such wise that she might be endowed with all notes befitting a perfect society. . . . And in canon 100, §1 we read: The Catholic Church and the Apostolic See are moral persons (corporations, societies) by divine right. This means that the Church exists without permission of the civil government. Necessarily incidental to this right to exist are the inherent rights of organization, propaganda, of acquiring property, etc. Given two distinct and independent authorities over the same subjects, however, i. e., the Church and the State with respect to baptised persons, conflicts would easily arise if there existed no boundaries or limits of demarcation between the two powers. The 12 PUBLIC CHURCH LAW rule, therefore, is that in matters spiritual the Church is sovereign whereas the State is sovereign in matters temporal. To quote Leo XIII again: The dlmighty has appointed the charge of the human race between two powers, the ecclesiastical and the civil, the one being set over divine, the other over human things. Each in its kind is supreme, each has fixed limits within which it is contained, limits which are defined by the nature and special object of the province of each, so that there is, we may say, an orbit traced out within which the action of each is brought into play by its own native right. . . . Whatever, therefore, in things human is of a sacred character, what­ ever belongs, either by its own nature or by reason of the end to which it is referred, to the salvation of souls or the worship of God, is subject to the power and judgment of the Church. Whatever is to be ranged under the civil and political order is rightly subject to the civil authority. Jesus Christ has Himself given command that what is Caesars is to be rendered to Caesar, and that what belongs to God is to be rendered to God (Immortale, § Itaque; Quidquid). The Church, then, is sovereign with respect to things sacred. Things are sacred which refer to the salvation of souls or the worship of God, cither by their very nature, e. g., the preaching of the word of God, the administration of the sacraments, the regula­ tion of acts of public cult, judgment concerning the morality of human acts; or by reason of the religious end to which they refer, though in themselves they are material and temporal, e. g., churches, chapels, altars, chalices, funds for the maintenance of the clergy, etc. On the other hand, the State is sovereign with respect to things temporal, e. g., the safeguarding of the liberty, reputation, and bodily integrity of its citizens, the protection of their property rights, the supervision of the public health—in a word whatever conduces to the advancement of the material welfare and prosperity of the citizens. The Church’s sovereignty in matters spiritual is asserted in several canons of the Code. Taken together they constitute, as it were, the code of public church law. The following arc the most important claims: 1 ) The Catholic Church universal, and the Apostolic Sec arc corporations by divine law, and exist independently of civil recogni­ tion (c. 100, §1 )· 2) The Church has an independent right to personal organiza­ tion (c. 109). 3) It is the right of the Roman Pontiff which he exercises PUBLIC CHURCH LAW 13 independently of the civil authorities to send his legates to any part of the world (c. 265). 4) It is the exclusive right of the supreme ecclesiastical author­ ity to declare the divine law with respect to matrimonial impediments, and to establish both impedient and diriment impediments for bap­ tised persons (c. 1038). 5) Sacred places arc exempt from the jurisdiction of the civil authorities, and the lawful ecclesiastical superiors alone exercise jurisdiction therein (c. 1160). 6) It is the right of the Church to possess her own cem­ eteries (c. 1206, §1 ). 7) In the exercise of public worship the sacred ministers depend on the ecclesiastical superiors alone (c. 1260). 8) It is the right of the Church independently of any civil ruler to teach the Gospel to every nation (c. 1322, §2). 9) It is the inherent and exclusive right of the Church to instruct those who desire to prepare for the sacred ministry (c. 1352). 10) It is the right of the Church to establish not only elemen­ tary schools but also high schools, colleges and universities for all branches of learning (c. 1375). 11) It is the right of the Church to forbid that the faithful publish books which have not obtained the previous ecclesiastical imprimatur, and for a just reason to forbid them the reading of certain publications (c. 1384, 1395). 12) The Catholic Church and the Apostolic See have original right freely and independently of the civil authorities to acquire, possess and administer temporal goods useful or necessary to their purpose. This right belongs also to any other moral person in the Church (c. 1496). 13) It is also the right of the Church independently of the civil authorities to exact of the faithful funds necessary to conduct public worship, to maintain the clergy becomingly and to carry on any other works of an ecclesiastical character (c. 1496). 14) The Church can acquire temporal goods by any just title of natural or positive law which is permitted to others (c. 1499). 15) Prescription as recognized by the civil law of each nation, the Church also adopts, saving certain matters where her own laws govern (c. 1508). 16) Those who by natural or ecclesiastical law are competent 14 PUBLIC CHURCH LAW to dispose of their temporal goods at pleasure can devote the same to pious causes either by an act inter vivos, or by last will and bequest (c. 1513). 17) When last wills arc made in favor of the Church let the formalities of the civil law be observed as far as possible; if they were omitted, the heirs shall be admonished to carry out the testator’s wish nevertheless (c. 1513, §2). IS) Concerning contracts and payments, whatever the civil law enacts should be observed also in ecclesiastical transactions, save where its rulings run counter to divine law, or canon law has some rulings of its own (c. 1529). 19) The Church by inherent and exclusive right judges: 1) Concerning causes spiritual or mixed; 2) Concerning the violation of ecclesiastical laws, and violations of civil law to the extent that sin is involved and for the purpose of determining guilt and inflicting ecclesiastical punishments; 3) Concerning even the temporal causes of clerics and religious. In mixed causes where the civil and ecclesiastical authorities are equally competent, he who first takes cognizance of the case retains exclusive jurisdiction (c. 1553). 20) Marriage causes of baptized persons belong by original and exclusive right to the ecclesiastical court (c. 1960), saving causes involving the purely civil effects of marriage (c. 1961). 21) It is the inherent and original right of the Church, inde­ pendently of any human authority to restrain her delinquent subjects with spiritual and temporal punishments (c. 2214). ART. HL Canon law is supreme human law. Although the Church is sovereign in the spiritual order, and the State is sovereign in the temporal order, yet there exists a large number of so-called mixed matters over which both societies may claim jurisdiction. Mixed matters arc those which at one and the same time have both a religious and a temporal aspect, e. g., mar­ riage, church property, processions in the public thoroughfares, ecclesiastical appointments, etc. PUBLIC CHURCH LAW 15 Even in mixed matters conflict between the two societies can be avoided by the application of this further principle: in mixed mat­ ters the Church has jurisdiction as far as the religious consequences reach, and the State as far as the temporal consequences. In practise, however, the solution is not so simple; one society may unduly extend its authority. In view of the independence which Church and State claim in matters falling within the proper sphere of each, the ques­ tion naturally arises: who shall define the borderline in this so-called twilight zone of mixed matters? The answer is given by Leo XIII, when after observing with St. Paul (Rom. XIII, 1) that all power is from God, and that the powers that are, are ordained of God, adds: There must, therefore,, exist between these two powers a certain orderly connection, which may be compared to the union of the body and soul in man. The nature and scope of that connection can be determined only as we have laid down, by having regard to the nature of each power, and by taking into account the relative excellence and nobleness of their pur­ pose. One of these has for its proximate and chief object the well­ being of this mortal life; the other the everlasting joys of heaven (Immortale, § Sed quia; Itaque inter). In other words, of the two societies, the Church is the more excellent and noble, for the end at which it aims is nobler than that of the State, namely, the eternal welfare of the soul. And just as the welfare of man’s body cannot take precedence over that of his. soul, so neither can the claims of the State take precedence over those of the Church; but rather, just as the body must at times suffer that the soul may be saved, so the State must be willing to sacrifice its claims when they are incompatible with those of the Church. Judgment, then, concerning competency in the zone of mixed matters must necessarii}' be reserved to the Church, just as every higher court is judge of its own jurisdiction as against a lower court. This, then, is what is meant by the supremacy of ecclesiastical authority, and as a necessary corollary, the supremacy of canon law with respect to civil law. In the event that the State refuses to abide by the decision of the Church, and usurps rights belonging to the latter, the Catholic citizen need not hesitate for a norm of action. His loyalty must be given to the Church: the command of the Church prevails, and that of the State is excluded. 16 PUBLIC CHURCH LAW ART. IV History of Ecclesiastical Authority Neither the sovereignty of the Church in matters sacred, nor her supremacy in mixed matters, has been acknowledged by civil govern­ ments at all times and in all places. Concerning the historical vicis­ situdes of ecclesiastical authority, and therefore, the historical and present status of canon law, we shall confine ourselves to a few brief remarks. In the first three centuries the Church was outlawed and per­ secuted as an illicit society. Christians were accused of atheism, superstitious practises, and treason against the State for refusal to worship the Roman gods. But in practise, during brief intervals of peace, Christians succeeded in organizing themselves into recognized societies for burial purposes. This, together with the fact that even in those early times the Church was already conscious of her rightful God-given independence of the State in the field of religion, explains how she could maintain internal order and develop a fairly perfect organization without external aid, and by appealing only to the con­ science of her subjects, so much so that already in 313 the Emperor Constantine by his edict of Milan could accord Christianity the same legal status in the Empire that the religion of pagan Rome enjoyed. From 313, when peace was restored to her until 1300, which period we may call the Middle Ages, the Church in the West (for the Byzantine Church was gradually absorbed by the State) increased in moral influence to such extent that she came to be regarded by civil rulers not only as a sovereign, but as the supreme authority. She enjoyed the full patronage of princes, her clergy were endowed with privileges including civil power, temporal lords vied one with the other in the erection of sacred edifices, churchmen sat in the councils of kings, canon law equally with civil law became the law of the land and was enforced by the secular arm. The distinction between things sacred and things temporal was lost sight of due to this mutual good will, while the term mixed matters was unknown. Conflicts were both few in number and insignificant in nature, if we except the struggle over investitures, and even this, ending as it did in victory for the Pope, only served to climax the power of the Church. It was the period of perfect union of Church and State because the Church was accorded her rightful supremacy in human society. PUBLIC CHURCH LAW 17 Referring to this epoch, Pope Leo XIII eulogizes as follows: There was a time when States were governed by the principles of Gospel teaching. Then it was that the power and divine virtue of Christian wisdom had disused itself throughout the law's, institutions and morals of the people, permeating all ranks and relations of civil society. Then, too, the religion instituted by Jesus Christ, established firmly in befitting dignity, flourished everywhere, by favor of princes and the legitimate protection of magistrates; and Church and State were happily united in concord and friendly interchange of good offices. The State constituted in this wise, bore fruits important beyond all expectation, tvhose remembrance is still, and always will be, in renown, witnessed to as they are by countless proofs which can never be blotted out or obscured by any craft of any enemies. Christian Europe has subdued barbarous nations, and changed them from a savage to a civilized condition, from superstition to true worship. It victoriously rolled back the tide of Mohammedan con­ quest; retained the headship of civilization; stood forth in the front rank as the leader and teacher of all in every branch of national culture; bestowed upon the world the gift of true and many-sided liberty; and most wisely founded very numerous institutions for the relief of human suffering (Immortale, § Fuit aliquando tempus). From 1300 to 1789, i. e., to the French Revolution, although union of Church and State was theoretically maintained in Catholic countries, the supremacy of the State was asserted in practise. The Church continued as the State Church, and its sovereignty in things spiritual was not denied in theory, but the decision concerning the borderline in the zone of mixed matters was de facto usurped by the State. More than one cause brought about the changed attitude: the rise of sovereign states in the 14th century: and the teachings of Marsilius of Padua of the same century concerning the sovereignty of the people as contained in his book Defensorium Pads; the weaken­ ing of papal authority resulting from the exile at Avignon; the West­ ern Schism; the Protestant revolt of the 16th century; and the socalled Catholic political theories concerning church authority which in France went by the name of Gallicanism, in Germany and Austria Febronianism and Josephism, in Italy and Spain Jurisdiction a lism, but whose keynote being identical, namely the undue exaltation of the power of the king and emperor in ecclesiastical affairs, may gen­ erally be designated as Regalism or Caesariem. The intrusion of the secular ruler in the affairs of the Church was rationalized and justified by the above schools of political thought on more than one specious pretext. The State, it was claimed, had con­ trol over all external and visible affairs, the Church should confine 18 PUBLIC CHURCH LAW herself to the purely spiritual and religious field. Again, the temporal ruler has the jus cavendi, i. e., the police power of safeguarding pub­ lic order and of suppressing, even under the pretext of religion, crimes, frauds, etc. Moreover, not only the Holy Roman Emperor, but every sovereign ruler was the Defender of the Faith ; it was his right and duty to protect religion (jus advocatiae). Under the jus cavendi the regalists listed: the placitum regium, or the right of the king to forbid the publication of episcopal and papal decrees in the country; the appellatio ab abusu, or his right to rescind the sentence of the ecclesiastical court; the jus exclusivae, or his right to exclude undesirable candidates from ecclesiastical offices. In virtue of the jus advocatiae the following acts were considered jus­ tified: in general to protect the essentials of religion; in particular to convoke councils, to forbid pernicious books, to forbid the alienation of ecclesiastical goods, to administer the same for the good of souls, to determine the subject matter of sermons, to supervise religious instruction in schools, seminaries and theological faculties, to deter­ mine the number of holydays and fast days, to issue rules concerning sacred processions, etc. Since these rights were supposed to be exercised without the necessity of consulting the ecclesiastical authorities, and were in fact so exercised, the supremacy of the State and the corresponding subordination of the Church were accomplished. From the French Revolution to the present day—The French Revolution proclaimed the equality of all men not only in civic mat­ ters but also in religious conviction and practise. Therefore, no longer should the State acknowledge one religion to the exclusion of another, or support a State Church. The State should confine itself to the material prosperity of the citizens exclusively, the Church to their spiritual welfare. Both should go their own way without concerning themselves with the affairs of the other. This is known as the separa­ tion of Church and State as opposed to the union of Church and State which had hitherto existed in all Catholic countries, and in virtue of which the Catholic religion had always been the official religion of the State, which involved State protection and support, and simply toleration at most of any other religion. Under the arrangement known as separation, the Church is not considered sovereign, much less supreme. Her status under the law is that of a voluntary association, subordinate like all other corpora­ tions to the civil authority. For this reason, and because in practise complete separation is an impossibility, since in mixed matters the State will either be friendly or hostile, the system cannot as a thesis PUBLIC CHURCH LAW 19 he defended by Catholics. As a thesis it was condemned by Pius IX when in his Syllabus of Errors he included the 55th proposition : The Church ought to be separated from the State, and the State from the Church. The proposition can be defended only as an hypothesis, namely, if and where the population of the country is not predominantly Catholic, and especially, as in the United States, where Catholics form a minority group. The liberalism proclaimed by the French Revolution, however, was not without its benefits to the Church. It put an end to the divine right of kings and the absolutism of former times. By vesting sovereign authority in the people it furnished the Church with a new escape from oppression. The Church could now appeal directly to the Catholic solidarity in the nation and call upon them in the name of conscience to come to the aid of their religion by forming themselves into election coalitions for the purpose of repealing or forestalling any legislation aimed against her rights and liberties. This new phase of the Church’s moral power, civil governments have not failed to notice. They have been willing to come to terms with the Holy See. More than half of all concordats recorded in the history of the Church have been concluded in the 19th and 20th century. Also more governments are represented through their ambassadors and envoys at the Vatican today than at any rime in the past. And so, while the sovereignty of the Church may he theoretically repudiated where separation of Church and State pre­ vails, that sovereignty is often in fact acknowledged none the less. In the United States wc have separation of Church and State. The Federal government is committed to this system in virtue of art. 6, sect. 3 of the Constitution : .Vo religious test shall ever be required as a qualification to any office or public trust under the United States, as also in virtue of the first amendment to the Consti­ tution: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. Due to our dual system of government these provisions are not binding upon the several States. As a matter of fact, however, similar provisions regarding separation of Church and State are found in the Constitu­ tion of every State of the Union. American law, then, of necessity considers the Church nothing more than a voluntary association of members for religious purposes, with no inherent sovereign rights conferred by divine law. This same attitude is taken toward every other Church or sect. It is an ideal arrangement in view of the variety of religious beliefs professed by American citizens. 20 PUBLIC CHURCH LAW In the civil courts the Code of Canon Law represents the by­ laws of a private corporation, supposing an ecclesiastical entity— diocese, parish, religious organization—has requested and obtained a charter of incorporation from the State. This is easily obtained. Where canon law contravenes civil law, it will be set aside by the civil court. Where such conflict is not found, the court will decide litigations on the basis of the canon law. No one doubts that the Catholic Church in America enjoys greater freedom, or that her canon law finds a greater range of ap­ plication here, than in any other country, including many so-called Catholic countries where the system of concordats prevails. This is due, not so much to the arrangement of separation of Church and State, as it is to the American concept of liberty. That concept contains two elements : 1 ) that the government should leave as large a liberty as possible to individuals and groups within the State, only intervening in the interests of morality, justice and the common­ weal. and in this respect perhaps the concept docs not differ in principle from that entertained by other governments; 2) that the welfare of the State should not be considered menaced save in extreme­ ly few instances, and herein lies the difference betwen American and non-American liberty in practise, State totalitarianism being incom­ patible with the American concept of liberty. In virtue of this broad concept, the Church in America possesses her own schools, may acquire property generally without restriction, may administer the same without interference, her property is free from taxes, she is left undisturbed in the choice of her bishops and pastors, civil recognition is given to marriages performed by her clergy, religious Orders and Congregations obtain legal recognition with the same ease as any other private corporations, etc. That conflicts arc possible between canon law and American civil law, and in fact do exist, no one can deny. But those conflicts are so few in number, and actual friction is so easily avoided, that so far we have found no need either of concordats, of Catholic political parties, or of diplomatic relations with the Holy See. Although the civil government looks upon canon law as private law, yet all Catholics will continue to regard the commands of the Church as sovereign law. No Catholic worthy of the name will regard a merely civil marriage ceremony sufficient in his own case, although the State may consider it sufficient. Nor will the same Catholic citizen remarry during the lifetime of his former spouse, even though the civil law may permit this in the event he has secured a decree of civil divorce. Chapter III THE HISTORY OF CANON LAW The Code of Canon Law has a history, from the viewpoint of its contents, which reaches back nearly 2,000 years. The codification, it is true, is a recent achievement, but the laws which have been codified are for the most part old legislation. Some of the laws, indeed, at least in their substance, were known already to the primitive Church. Canon law originated in different parts of the world. Like civil law it usually passed from custom into written law. At first it was the church councils who framed the written law, then individual Popes, and in recent times, it has been the Roman Congregations. Again, canon law, just like civil law, encountered many vicissi­ tudes down through the ages. From time to time it had to be modified or even entirely abrogated in parts to harmonize with the changing conditions of society. And as the Church expanded out­ wardly, and developed inwardly, her laws were multiplied and grew more complex in nature. This continual change in the law called for new collections time and again. It is in the light of these collections that we best sec the growth and history of canon law as a legal system. Some knowledge of these collections is essential to the student of canon law. While the Code has certain advantages over former collections, yet it is not entirely an unmixed blessing. The very brevity with which the lawgiver expresses his will in the Code often leads to obscurity concerning the true meaning of the law. It thus becomes necessary to revert to the former legislation time and again, and to read the former law in its original and lengthy text. To this end the Code carries some 26,000 references to the former legisla­ tion. Much of this legal material from the former collections has been gathered into nine large volumes by Cardinals Gasparri and Sercdi under the title Codicis Juris Canonici Fontes. It adds to the usefulness of this post-Code collection if the student has a general grasp of the development of canon law in its historical sequence. Of the collections we shall now describe some are chronological, 21 22 HISTORY OF CANON LAW others are systematic; some are genuine, others spurious; some authentic, others apocryphal ; some are private, others arc public, i. e., official collections. Chronological collections arc those which dispose the laws in the order of time in which they were enacted ; systematic collections arrange them logically according to subject matter. Genuine collec­ tions contain only true laws; spurious collections contain fictitious laws, either wholly or in part. Authentic collections bear the name of the author who actually compiled them ; apocryphal collections were not composed by the authors whom history or tradition claims to have been the authors. Private collections are those which, as collections, never received ecclesiastical approval, so that the laws which they contain have the same binding force, no more and no less, after their insertion into the collection as before. But public collec­ tions, since they have been approved by the Church as collections, cause all laws which they contain to be genuine and binding, even though some may have formed fictitious legislation prior to the compilation. Since canon law was first developed in the East together with the development of the Christian Church in that part of the world, we shall consider the collections that grew up in Asia Minor before considering the later canon law of the Church in Western Europe. The West borrowed its canon law from the East in the early centuries of the Church, and this explains why our canon law has so many terms which are Greek in origin, e. g., episcopus, diocesis, presbyter, patriarcha, etc. ART. I. Collections of the Eastern Church. During the first three centuries not much church law was elaborated. The Church being still in her infancy and Christians few in number, she had to struggle for her very life, what with persecutions from without and heresies from within. During these trying times the Church was governed mostly by the maxims of Holy Writ and some few rules given by the Apostles. Pseudo-Apostolic Collections—Attempts to preserve these Apos­ tolic traditions resulted in the so-called Apostolic Collections. These collections, however, are apocryphal ones, i. c., the Apostles were not really their authors, and this is shown from internal evidence. For they make mention of later institutions unknown to the Apostles, HISTORY OF CANON LAW 23 such as choristers, lectors, annual provincial councils, parishes, etc. Still they are valuable historical documents insofar as the legal matter they contain is genuine law, and reflects the discipline in force at the time of the authors who wrote them. The mostjmportant of those collections are: 1) the Didache, or The Teaching of the Apostles, composed toward the end of the first century; 2) the Didascalici, or The Doctrine of the Apostles, which dates from the second century'; 3) The Ecclesiastical Canons of the Holy Apostles (end of third century) ; 4) the Constitutions of the Apostles (beginning of the fifth century) ; 5) the Canons of the Apostles (completed in the sixth century). The above collections contain general rulings on such subjects as: the celebration of Mass, the observance of Sunday, the election of bishops and deacons, requisites in the candidate for holy orders, the administration of church property, etc. Many rules, however, are more exhortator)’ than mandatory in tone. Fetus Codex------ With the cessation of persecution in 313, the Church was free to grow, and to exercise her divinely conferred prerogatives. Soon the bishops convened in councils, both general and particular councils. Between 314 and 415 ten celebrated coun­ cils were convened, some of which were only regional councils. Yet the collection of the decrees of these ten councils came to be universally known and obeyed. The collection is known as the Telus Codex Ecclesiae Universae. The councils in question were held at: 1) Ancyra (314) ; 2) Neo-Caesarea (314; 3) Nice (315) ; 4) Anti­ och (341 ) ; 5) Gangrae (343) ; 6) Sardis (344) ; 7) Laodicea (343381?); 8) Constantinople I (381); 9) Ephesus (431); 10) Calcedon (451). To the decrees of this collection were prefixed 85 Apos­ tolic Canons referred to in the preceding paragraphs. Collection of John, the Scholastic—This compiler was a priest of Antioch and later the patriarch of Constantinople. Because he was a member of a School of Lawyers he was surnamed the Scholastic. He composed around 500 A. I), a systematic collection of church law and divided it into titles. Besides some material found in the Vetus Codex, it carries 68 letters of St. Basil and 87 capitula from the Novels of Justinian. It is the first systematic collection, and the first civil-ecclesiastical collection, and for those reasons it is mentioned in all accounts of the history of canon law. Trullan Collection—The Council of Trulla (691), although not an oecumenical council, made bold to order and authorize a collection of canon law destined for observance in the universal Church. It contained 85 Apostolic Canons, the Fetus Codex except­ 24 HISTORY OF CANON LAW ing the'decrees of Sardis, 102 canons of the Trullan Council itself, 133 canons taken from the IV Council of Carthage (419), and 147 canons gathered from the writings of the Eastern Fathers. Collection of Photius—Photius, the usurping patriarch of the See of Constantinople, is known as the father of the eastern schism. About the year 883 he compiled a collection of church law of his own which embodied all the material of the Trullan Collection just mentioned. In addition he inserted 22 canons of the II Council of Nice (787), and 20 canons of the two pseudo councils at which he presided. His collection in its second part is what is called a nomocanon, i. e., civil legislation concerned with ecclesiastical matters. After the death of Photius no new collections appeared in the Eastern Church, and its canon law thereafter remained stationary. The schismatic churches are governed by his law today. ART. II. Collections of the Western Church The history of canonical legislation in Western Europe falls conveniently into three periods: I) from the beginning until the Decree of Gratian (1151); 2) from then until the Council of Trent ( 1545) ; 3) from Trent until the Code of Canon Law (1918). SI. From the Beginning to the Decree of Gratian In the beginning the Church in the West, too, was governed mostly by the teachings of Scripture and by Apostolic traditions. Gradually the Fetus Codex of the East became known and its legislation adopted. Canon Law in the Church of Africa—It was not until the sixth century that the Fetus Codex became known to the Christian com­ munity in northern Africa. Up until then several local councils were held, especially at Carthage, the 17th being convened already as early as 419. Each subsequent council was wont to confirm the rulings of the preceding councils so that there grew up a body of local legislation binding throughout the African Church. Their decrees form a collection of law which is known as the Code of Canons of the African Church. This Code became renowned throughout the whole of Christendom. In the East many of its canons were embodied, as wc saw, in the Trullan collection, and thus found their way into the Collection of Photius, so that even today they constitute a large portion of legislation for the Greek Orthodox HISTORY OF CANON LAW 25 Church. Also in the West, first through inclusion in the Dionysian collection, later through the medium of the Spanish Collection, and lastly through the pscudo-Isidorian Collection, they became universal­ ly known and respected. About 546 the Eastern canons were introduced into the Church of Africa through a private systematic compilation known as the Breviatio Fulgentii Ferrandi, composed by a deacon of that name at Carthage. Later in 690 there appears another systematic collection of Eastern canons by Cresconius, probably an African bishop, which is known as Concordia Canonurn Cresconii. With the Mohammedan invasion in the eighth century, the Church in Africa was practically annihilated. At any rate, it produced no more worth while legislation thereafter. The Dionysian Collection—About the year 500 a Sythian monk, Dionysius the Little, (Dionysius Exiguus) so named either because of his stature, or his humble disposition, composed at Rome a Latin version of the Eastern canons taken from the Fetus Codex. It is a chronological work and is divided into two parts: Part I contains 50 Apostolic Canons, and more than 200 canons taken from the Fetus Codex and from the African councils; Part II contains papal decretals dating from Pope Siricius (384-398) to Pope Anastasius (496-498). The collection soon became popular not only in Rome and Italy but throughout the whole Church. From it all later Latin collections drew their material in great part. It excelled all subsequent Latin versions in respect to fidelity* of translation, arrangement of contents and genuiness of documents. Spanish or Isidorian Collection—Like the Church in Africa, the Church in Spain was governed from the very beginning by its own synodal laws, those of Toledo enjoying a certain preeminence over all others. After the Eastern and African collections were intro­ duced into Spain, their canons together with the Spanish canons were approved as law for the whole of Spain by the IV Council of Toledo in 633, being called the Collectio Hispanica. The collection under­ went several revisions largely through the addition of new local legislative material. Because its preface contains certain excerpts from the writings of St. Isidore of Seville (died 636) it continued for a long time to be ascribed to this saint under the title Collectio Isidoriana. With the invasion of Spain by the Moors in the eighth century we find no new Spanish collections thereafter. Collectio Dionysio-Hadriana—The Church in France and Ger­ many had no centralized sec from the beginning such as Carthage 26 HISTORY OF CANON LAW was to Africa and Toledo to Spain. Hence, canonical legislation in the Frankish kingdom was not national in character, but rather the product of local synods. However, in 774 Pope Adrian presented Charlemagne with an enlarged copy of the Dionysian Collection. It is known as the Collectio Dionysio-Hadriana, or simply the Col­ lectio Hadriana. The enlargement consisted of the addition to the original Dionysian Collection of decretals from Pope Anastasius to Pope Adrian (498-774). In 802 Charlemagne caused the Adrian collection to be promulgated at the Diet of Aix-la-Chapellc as canon law for the entire Holy Roman Empire. English and Irish Collections—These countries at first were governed solely by the canons of Nice and their own local councils. In the sixth century the Dionysian collection was brought to Eng­ land. In the seventh and eighth centuries there appeared systematic collections in both countries, of which three deserve mention : 1 ) the Collection of Theodore, Bishop of Canterbury (673), being a compendium of the Dionysian Collection; 2) the Collection of Egbert, Archbishop of York (750), being a still larger compendium of the same Dionysian Collection; 3) the Irish Collection of an unknown author about the middle of the eighth century. This last became famous both in France and Italy, the compilers of these countries drawing largely therefrom. The material of the Irish Collection is taken from the Scriptures, the Eastern and Western Fathers, the Councils of the East, and the synods of Rome, France, Ireland and Wales. Pseudo-Isidorian Collection or the False Decretals—The ninth century was notorious for spurious and apocryphal collections. Chief among these was the Pseudo-Isidorian Collection, called also the False or Forged Decretals. This must not be confused with the Spanish Collection which in the course of time was also falsely ascribed to St. Isidore, and which originated in Spain in the seventh century, as we have seen, but which is called simply the Isidorian, not Pseudo-Isidorian, Col­ lection. The present collection under discussion was composed by an unknown author between 847 and 857 either in the Province of Rheims or Tours (France). For centuries after it appeared, it was ascribed to St. Isidore of Seville from the fact that in the preface the author speaks as follows: Incipit praefatio S. Isidori, Episcopi. Isidorus, Mercator, servus Christi, etc. The work is not only apocrypal but it is also spurious. Part I contains 50 Apostolic Canons, and 60 forged decretals purporting to have been issued by sundry Popes from the pontificate of Clement HISTORY OF CANON LAW 27 (88-97) to that of Melchiades (310-314). To this is added the forged Constitution of Constantine, also called the Donation of Constantine, for by it large privileges and vast estates, described therein, were supposed to have been conferred on Pope Sylvester (314-335) and the Roman Church. Part 11 contains the collection of councils up to 619 as found in the Spanish Collection. Part III exhibits the genuine decretals as found in the same Spanish Collection from St. Sylvester (314) to Gregory, the Great (715). Ίο these the author added 30 false decretals forged by himself. The fraud was not discovered until the 15th century. It was perhaps the first work subjected to the historical research for which this century is so rightly honored. When the False Decretals ap­ peared books were few, and compilers were altogether too eager to accept any new material for their collections, without questioning its authenticity. Add to this the implicit confidence a work reputed to have come from the pen of the saintly and learned Bishop of Seville was likely to inspire. The spurious character of the decretals appears: 1) from the unanimous silence of the councils concerning them prior to that date, whereas had they been genuine we should expect some conciliar men­ tion of them already in the fourth century; 2) from their scriptural citations, which now are known to have been taken from Latin versions of the Bible of the eighth century; 3) from citations of the fathers and Councils in said decretals, but which Fathers wrote, and Councils legislated, posterior to the purported date of the same decretals; 4) from the monotonous uniformity of style in which the decretals are composed, showing thereby the work of one man, where­ as one would expect more variety in letters supposed to have been issued by different Popes;) from their crude latinity which was characteristic of the ninth century, whereas a more classical Latin should have distinguished the earlier decretals. The purpose of the author in forging these decretals seems to have been the emancipation of the bishops from the domination of civil rulers and provincial councils. At that time, particularly in the Empire, it seems that the bishops were completely at the mercy of the civil authorities. These latter, when they desired the removal of a bishop, readily brought their influence to bear on the archbishop and the provincial council. The author proposed to prove : 1 ) that no bishop could be deposed solely by the archbishop; 2) that the sentence of even a provincial council in criminal cases against bishops was not final until confirmed by Rome. To this end he fabricated a number of decretals. Although more widely circulated and consulted than perhaps 28 HISTORY OF CANON LAW any other collection up to this time, it would be erroneous to con­ clude with the Protestants that the Forged Decretals materially changed the constitution of the Church from a society in which the universal episcopate enjoyed supreme jurisdiction to that of a papal monarchy. This is not the place to argue that prior to the ninth cen­ tury the primacy of the Roman Bishop had been generally acknowl­ edged throughout the West, even though that doctrine still needed further elaboration. The influence of the Forged Decretals, at the most, lay in the hastening of the explicit recognition by the Church of the Pope’s sovereignty. Systematic collections between the 10th and 12th centuries—The Pseudo-1 sidor ian collection was so complete in the quantity of its material, that it seemed idle to compile any further chronological collections. Moreover, particular synodal laws had multiplied to such vast proportions that it became increasingly difficult to discover the law in collections arranged chronologically. Attention, therefore, was directed to the composing of systematic collections henceforth. These collections dominate the 10th, 11th, and 12th centuries. At first crudely gotten up, they gradually came to reveal more scholarship, the authors adding observations and comments to the legal texts. Thus was paved the way, and thus were furnished the sources, for the famous Gratian Decree. §2. From the Decree of Gratian (1151) to the Council of Trent (1545) Up to now ecclesiastical legislation had been chiefly the product of councils, whether general or particular councils. Papal Jaw had assumed only a minor role. This was due less to lack of explicit recognition of papal sovereignty than to the fact that the various parts of the Church were more or less isolated from one another, as also from Rome, due to the absence of ready means of communica­ tion in those days. Add to this the almost constant civil disturbances in the Papal States, particularly at Rome, the conflict over investi­ tures, and the scandalous lives of certain successors of St. Peter. But after Gregory VII ( 1073-1085) proved victorious in his conflict with the Emperor over the question of investitures, we sec the papal power rising until it reaches its greatest height under Innocent III (1198-1216). The spiritual supremacy of the See of St. Peter which had hitherto lain dormant, though not unacknowledged, finally freed itself from the domination of civil rulers. The authority which had before been acknowledged only in theory for the most part, could now be also exercised in practise. And so, during this period up to the Council of Trent, common law becomes mainly papal law, and the legislation of the councils wanes. HISTORY OF CANON LAW 29 The legislation of this epoch is contained in the Corpus Juris Canonici, this being a composite of six distinct compilations: 1) the Decree of Gratian ; 2) the Decretals of Gregory IX ; 3) the Decretals of Boniface VIII; 4) the Constitutions of Clement V; 5) the Decretals of John XXII; 6) the Decretals called Extravagantes Communes. The Decree of Gratian (Decretum Gratiani)—Gratian, a Benedictine monk of the Camaldulese Congregation, composed at Bologna, Italy about the year 1151 a work which he entitled Con­ cordantia Discordantium Canonum, but which later was called by his disciples Decretum Gratiani. In those days any large collection of canons was called a decree. As appears from the author’s title, the work was an attempt to harmonize the many seemingly conflicting church laws of his time. Though several systematic collections were then in use, these were neither complete, nor well arranged, nor exclusive of contradictory canons. Gratian’s collection excelled all previous ones in that it was systematic, complete, scientifically arranged, well authenticated, and free of contradictions. The Decree is divided into three parts. Part I which treats of the sources of law and of clerics in general, is divided into 101 distinc­ tions, and these are subdivided each into canones. Part II which treats of trials, the temporal goods of the Church, regulars, marriage and penance is divided into causae, or titles, these in turn being sub­ divided into quaestiones, and these again into canones. Part HI treats of the sacraments and sacramentals, is entitled De Consecratione,.and is divided into five distinctions with subdivisions into canons. The Decree is more than a mere compilation of laws; it is a sci­ entific treatise as well. The author first states a general principle of canon law (distinctio). He then proceeds to confirm this by authorities (canones) taken from the Scriptures, the Fathers, coun­ cils, papal decretals, capitularies of the Frankish kings and from the Roman law. After this he develops the general principle by raising questions of law (quaestiones) which the principle logically suggests, and these again are answered and confirmed by further authorities (canones). Apparent conflicts between authorities are explained away by notes which are now called dicta Gratiani. In these the author points out, e. g., that one canon forms the rule, the other the exception ; one contains a precept, the other a counsel ; one is general law, the other particular law; one proceeds from a higher, the other from a lower authority, etc. Gratian's Decree soon became the popular textxbook of the 30 HISTORY OF CANON LAW schools, and the code of the ecclesiastical courts. Its greatest merit consists in having given a renewed impetus to the scientific study of church law. Henceforth, canon law is divorced from moral theology, and becomes a separate branch of study. The University of Bologna becomes a center of learning for students from all parts of Europe who repair thither to study both canon and Roman law. Commenta­ tors on the Decree {Decretists) usher in the golden age of canon law with their glossae, apparatus, summae, repetitiones, etc. Yet despite its popularity, the Decree always remained a private collection. Hence, whatever laws are found therein have only that authority which they possessed prior to their insertion into the collec­ tion. If they were general laws before, they remain so now; if particular, they remain particular; if spurious, they remain spurious, etc. In the source references as found in the Code, the Decree is cited as follows: Part I. e. g. : c. 3, D. XXIII, i. e. Distinction 23, canon 3. Part 11, e.g.: C. VII, q. 1 ; c. 18; i.e., Cause 7, question 1, canon 18. Part Ill, e.g.: c. 49, D. I., de cons., i.e.; Distinction 1, canon 49 of the third part of the Decree entitled De Consecratione. The abbrevia­ tion de cons, must be added to indicate that the reference is not to Part I. Decretals of Gregory IX (1227-1241) {Decretales Gregorii Noni)—Between 1151 and 1227 (the first year of Gregory the Ninth’s pontificate), a vast number of decretals had appeared. These were written answers to questions of law submitted to the Pope for decision, and although directed to an individual bishop, were con­ sidered binding in analogous cases. Also two general councils had been held during this time: Lateran III (1179) and Lateran IV (1215). Pope Gregory commissioned the Dominican friar, Raymond of Penafort, himself a canonist of note, and later canonized, to gather this new legislation into a systematic compilation. Completed in 1234, the work was formally approved as a collection by the Pope, and came to be known as the Decretals of Gregory IX, more from his being its originator than from any other cause, for, in addition to the decretals of Gregory, it contains the decretals of his eight predeces­ sors issued subsequent to the Decree of Gratian, quotations from the Scriptures and the Fathers, the canons of the two Lateran Councils just mentioned, and certain pre-Gratian laws not found in the Decree. The Gregorian Decretals, therefore, constitutes the first public collection of canon law in the history of the Church. It was also an HISTORY OF CANON LAW 31 exclusive collection. According to many authors it abrogated all prior general laws not contained therein, or in the Decree. Hence, all pre­ Gratian collections became thereby automatically obsolete. The Code seems to bear out this contention, for the source notes found therein do not antedate the Decree of Gratian. The Gregorian Decretals is divided into five books, these into titles and the titles into chapters. The five books treat respectively of: 1) prelates and their jurisdiction; 2) procedural law in civil cases; 3) clerics in general; 4) marriage; 5) criminal and penal law. The entire arrangement is expressed in the verse: Judex, judicium, clericus, connubia, crimen. This arrangement was an improvement over the system adopted by Gratian. It was followed generally up to our times by commentators, called decretalists, who produced glossae, apparatus, repetitiones after the manner of the decretists. The work is cited in the Code footnotes as follows, e.g., c. 7, X, de electione et electi potestate, I, 6, i.e., Book I, Title 6, Chapter 7. The capital “X” indicates that reference is to the Decretals of Gregory IX, it being an abbreviation of extra or extravagantes, for originally the work was called Extravagantes Decretales Gregorii IX, since it contained the decretals wandering, as it were, outside of the Gratian Decree. The words in italics are the rubric, or the title. Decretals, or Liber Sextus of Boniface Fill (1294-1303)— This, like the Gregorian Decretals, is a public collection, having been approved as such by Boniface VIII who authorized its compila­ tion. It contains the canons of Lyons I ( 1245) and Lyons II ( 1274), together with the decretals issued subsequent to the publication of the Gregorian Decretals (1234) and up to the year 1298. Intended primarily as a supplement to the Gregorian Decretals, the work is usually designated by the title: Liber Sextus Bonifacii Octavi, a continuation, as it were, of the five books of the former collection. Nevertheless, it is an independent work, being itself divided into five books, these into titles, and these again into chapters. It is cited by Cardinal Gasparri as follows: e. g.: c.4, de temporibus ordinationum et qualitate ordinandorum, 1,9 in Vio; i.e., Book I, Title 9, de temporibus, etc., chapter 4. The Clementines or Constitutions of Clement F (1305-1314) (Clementinae)—This is a collection begun by Clement V, but due to the political conditions of the times (Clement was the first pope of the so-called Babylonian Captivity), it was officially promulgated only after his death by John XXII. It is therefore a public collection. HISTORY OF CANON LAW It contains the constitutions of Pope Clement, the majority of which were enacted at the Oecumenical Council of Vienne in France ( 1318) at which the Pope himself presided. It carries also one constitution of Boniface VIII, and one of Urban IV. The Clementines is divided into five books, these into titles and chapters. It is cited by Cardinal Gasparri as follows, e. g. : c. 2, de judiciis, II, 1, in Clem.; i.e., Book II of the Clementines, Title I, de judiciis, chapter 2. Extravagantes Johannis XXII (1316-1334)—Because John XXII never authorized a public collection of his own decretals, 20 of them were gathered, nevertheless, into a private compilation under the title: Extravagantes Johannis XXII, because they were not to be found in any previous official collection. This happened in 1325. In 1500 John Capuis after arranging these decretals into a logical order under 14 titles and 20 chapters (there was no division into books for paucity of material), incorporated them into his edition of the Corpus Juris Canonici. The work is cited in annotated edi­ tions of the Code thus, e. g. : c. un. de poenis, tit. XII, in Extravag. Joan. XXII; i.e. Title 12 of the Extravagants of John XXII, the sole chapter entitled de poenis. Extravagantes Communes (1294-1484)—This is a private col­ lection of 70 decretals of several Popes {communes') from Boniface VIII to Sixtus IV, but not found in any previous official collection (extravagantes). Having gathered these decretals, John Capuis in 1500 distributed them into books, titles and chapters, omitting Book IV for want of matter. To this collection he gave the name Extrava­ gantes Communes. He then embodied it into the Corpus Juris Canonici. The collection is cited in the Code as follows: c. g. c.2, de reliquiis et veneratione sanctorum, III, 12, in Extravag. com., e., Book-111 of the Extravagantes Communes, Title 12. de reli­ i. quiis, etc. chapter 2. Corpus Juris Canonici- In general corpus juris signifies a com­ plete collection of laws. In particular it means a composite of collec­ tions. Thus the Corpus Juris Civilis comprised the four collections of the Roman law: the Pandects, the Code, the institutes and the Novels. In canon law the term was first applied to the Dionysian Collec­ tion, later to the Decree of Gratian, after that to the three public collections of this period. In 1500 John Capuis, a Parisian editor, published as one work under the title of Corpus Juris Canonici, the Decree of Gratian, the three public collections: Gregorian Decretals, Liber Sextus and Clementines, and to these he added by way of HISTORY OF CANON LAW 3Î appendices the two above collections of Extravagant Decretals. In 1580, after the Correctores Romani, to whom had been assigned the task of revising the text of these collections, had completed their work, Gregory XIII by the Brief, Cum pro munere, at one and the same time both approved the text as official, and authorized the name Corpus Juris Canonici to designate the six collections of this period. In so doing the Pope merely declared the Roman edition of the text to be official, so that it could be safely followed by the courts. The Corpus as a whole acquired no authentic character. Consequent­ ly only the Gregorian Decretals, the Liber Sextus and the Clemen­ tines arc public collections; the others remaining private compilations, despite their insertion in the Corpus Juris Canonici. Several editions of the Corpus Juris Canonici have since appeared. Some contain the authorized Roman text, others do not. Of the unauthorized editions some appear with glosses in three volumes, others without glosses in two volumes. The best critical edition of recent date, though without glosses and of private authority, is that published by Richter-Friedberg (Leipzig, 1922, 2 cd. 2 vol.). §3. From the Council of Trent (1545-1563) to the Code (1918) After the death of Sixtus IV” ( 1483) until the Council of Trent no new collections of canon law, cither public or private appear. Wc, therefore, may assign the beginning of this third epoch to the legis­ lation of Trent. From now until the promulgation of the Code, the sources of ecclesiastical law arc: the Council of Trent, papal constitutions, and the decrees and decisions of the Roman Congregations. The Vatican Council (1869-1870) enacted no laws, but was able to frame only two dogmatic constitutions, when it was forced to adjourn due to the occupation of Rome by the Italian troops. DECREES OF THE COUNCIL OF TRENT—The object of this council was two-fold : to purify the true faith of Protestant errors, and to reform ecclesiastical discipline. The Council sat through 25 sessions, but not all of these enacted laws. Those sessions which occupied themselves both with doctrine and legislation arc divided into two parts: the first being doctrinal, e. g., concerning the number and nature of the sacraments, the nature of faith, the existence of purgatory, the licitness of the veneration of saints, and other points of Catholic doctrine which had been assailed by the Protestants. Part II of the sessions, inscribed Decreta de reform­ atione, was again divided into distinct chapters touching upon various points of church law. Hardly any canonical institution escaped some 34 HISTORY OF CANON LAW revision. Of special interest was session 24 on marriage which con­ tained the famous decree Tametsi, and session 25 on regulars. The Tridentinc Decrees constituted the most important source of canon law during the last four centuries. They were profusely cited in all text books. However, no authentic collection of these decrees was ever authorized and thus made an official or public collec­ tion. But there have been several private collections, the most popu­ lar perhaps being that entitled Canones et decreta Concilii Tridentini by Schulte-Richter (Leipzig, 1853). The notes of the Code refer to the Council as follows, e. g. : Cone. Trident., sess. XXIV, de matrimonio, can. 7. PAPAL CONSTITUTIONS, BULLARIA—After the Council of Trent, the Popes no longer found it necessary to issue decretals explanatory of the law. Doubts were still to arise, of course, but the function of interpreting doubtful laws was committed to the Roman Congregations, especially to the Congregation of the Council. These Congregations were organized by Sixtus V in 1587. During recent centuries papal legislation, in the formal sense, has been confined to the issuing of constitutions. Since these are always given in the solemn form of a Bull, collections of papal con­ stitutions have come to be called bullaria. The only public Bullarium is that authorized by Benedict XIV containing the constitutions of this Pope during the first six years of his pontificate. All other collections of papal constitutions or bullaria, are private. In addition to the constitutions, the bullaria contain other papal acts, e. g., decretals, letters, encyclicals, etc., not only of the more recent Popes, but some reach back to the first centuries of the Church. The Bullarium most common in use is that called the Magnum Bullarium Romanum published by Jerome Mainardus and Charles Cocquclincs (1733-1762). In its present form it consists of 32 volumes, and contains papal letters and acts from Leo the Great, (440-461) to the death of Benedict XIV (1758). The Bullarii Romani Continuatio was intended as a sup­ plement to the Magnum Bullarium Romanum. Edited at Rome between 1835 and 1857, it contains papal acts from Clement XIII (1758-1769) to Pius VIII inclusively (1830). The laws and letters of recent Popes from Gregory XVI (1830-1846) to Pius X (1908) are found in private collections; Acta Gregorii XVI (Rome, 1901-1904; 4 vol.) ; Acta Pii IX (Rome, 1854, sq. 9 vol.); Acta Leonis XIII (Rome, 1881-1905, 24 vol.) ; Acta Pii X (Rome, 1903-1908, 5 vol.). Thereafter all papal acts are published in the official Commentary of the Holy See, issued HISTORY OF CANON LAW 35 monthly at Rome under the title: Acta Apostolicae Sedis, which was begun in 1908 by authority of Pius X, so that at present it runs to 39 vol. (1947). Papal constitutions are cited in the notes of the Code by refer­ ence to the Pope, the initial words of the constitution and the date, thus, e.g. : Gregorious XIV’ const. “Onus A postolicae,” 15 May, 1591. COLLECTIONS OF THE ROMAN CONGREGA­ TIONS—The decrees and decisions of the Roman Congregations were also gathered into collections, some of which arc public, others only private collections. 1. Thesaurus Resolutionurn Sacrae Congregationis Concilii in 167 volumes. The collection contains the decisions of this Congrega­ tion from 1718-1908. Though not authentic, it may be called quasi­ official and public, having been uninterruptedly edited under the supervision of the secretaries of this Congregation. 2. Collectanea in usum secretariae S. C. Episcoporum et Regu­ larium. This collection of a private character contains some select decrees of the Congregation of Bishops and Regulars which was suppressed and replaced in 1908 by the present Congregation of Religious. The collection was edited twice by A. Bizarri at Rome (1863, 1885). 3. Collectanea S. C. de Prop. Fide. This is a public collection of the decrees of the Congregation of rhe Propaganda, although it contains decrees of other Congregations as well. The first edition is systematic and in one volume (Rome, 1893), the other is chronologi­ cal and in two volumes (Rome, 1907). 4. Decreta authentica Congregationis Sacrorum Rituum is an authentic or public collection of the decrees (decisions) of the Con­ gregation of Rites. Edited at Rome, 1898, in five volumes by author­ ity of Leo XIII, it has since been enlarged by the addition of two volumes: Appendix I (Rome, 1912) ; Appendix II (Rome, 1927). 5. Decreta authentica S. C. Indulgentiis sacrisque Reliquiis praepositae ab a. 1668-1882, edita jussu et auctoritate SS. D. N. Leonis Papae XIII. As the title indicates this is a public collection of the decrees of the Congregation of Indulgences and Relics. The Congregation no longer functions, its duties having been taken over by the S. Penitentiary so far as concerns indulgences, and by the Con­ gregation of Rites as far as concerns relics. 6. Index librorum prohibitorum Leonis XIII Summi Pontificis auctoritate recognitus, S. D. N. Pii Papae XI jussu editus. A public 36 HISTORY OF CANON LAW collection of the decrees of the Congregation of the Index, revised and brought up to 1924. It is an authentic collection of prohibited books. An authorized English version of the second edition has been published. The Congregation of the Index was suppressed in 1917, its jurisdiction having been transferred to the Holy Office. One refers to the decrees and decisions of the Congregations in this manner: first the abbreviated name of the Congregation is given, then the abbreviated name of the diocese involved, then the date of issuance, thus: S. C. C., Reatina, June 3, 1592; S. C. R., Aquen., Mar. 3, 1761 ; S. C. S. Off., Neo-Eboracen, Aug. 4, 1877, etc. Collections of Church Councils—The history of the Church, i. e., the life and activities and status of the Church at any particular period of the past can be gleaned from the legislation of general coun­ cils during that period, or of national councils if there is question of learning the customs and conditions that prevailed in some par­ ticular nation. In the same way the student can sec the development over a long stretch of time through which this or that particular juridical institution has passed which might be of interest to him, e. g., the history of clerical celibacy, of Mass stipends, of the exemption of regulars, etc. Fr. John Harduin published one such collection of council acts at Paris in 1715. It comprises 12 volumes and brings the legislation up to 1714. The work is entitled Acta Conciliorum et Epistolae Decretales ac Constitutiones Summorum Pontificum. Archbishop Mansi began a similar collection of council legisla­ tion, which was continued by others after him, so that up to 1927 it comprised 57 volumes under the title: Sacrorum Conciliorum Nova et Amplissima Collectio. AMERICAN CANON LA IP—A country can have its own canon law besides being governed by the common law. The particu­ lar laws will be found as a rule to consist of laws enacted by national councils, provincial councils and diocesan synods. In the United States wc have had three plenary, i. e., national councils, all held at Baltimore, one in 1852, another in 1866, the third in 1884. The acts of the 2nd and 3rd plenary councils, which alone were important from the viewpoint of legislation, have been published by John Murphy Co., Baltimore. The Holy See has given us special constitutions and decrees in the past to meet the conditions peculiar to our country in cases where the common law could not be observed. Thus, at one time we fol­ lowed a procedure of our own in the civil and criminal cases of HISTORY OF CANON LAW 37 clerics; and again we have a method of our own for recommending to the Holy See candidates for vacant bishoprics. So, too, wc have customs particular to this country which often originated with the early missionary conditions of America, and which have been tolerated by the Holy See, even though they some­ times militate against the common law. Thus, priests in this country do not wear the clerical tonsure. Another example is the practise of our bishops of imposing an annual assessment on their parishes, called the cathedraticum, for episcopal support. According to common law this assessment must be a very trifling offering, and made rather in token of the bishop’s jurisdiction, not for his maintenance; and it must be the same in amount for every parish. With us the tax varies in proportion to the income of the parishes taxed. Induits and privileges might be reckoned as forming part of national law. We have a few such induits granted by Rome, e. g., the privilege of transferring the Saturday abstinence in Lent to Wednesdays; another is the extension of the Easter season from the first Sunday of Lent to Trinity Sunday; another is the reduction of holydays of obligation, these being fewer with us than arc prescribed by the common law. Finally, there arc the habitual faculties of the Apostolic Delegate, and of the American Bishops, which, insofar as they can modify the common law through dispensations, should be considered as an clement in creating particular law. Chapter IV THE CODE OF CANON LAW IN GENERAL Before approaching Code, it may be well to origin of the Code; 2) and binding force; 4) the Code. our study of the legislation contained in the make some observations concerning: 1) the its material arrangement; 3) its authority canonical literature and commentaries on ART. I. Origin of the Code At the time of the Vatican Council, which convened in 1869, the Church had for nearly four centuries lacked a complete collec­ tion of her laws. After the Corpus Juris Canonici was edited in 1500 various contemporary collections had indeed been compiled, but these were neither complete nor public, i. e., authoritative collections. Accordingly, the Catholic hierarchy urged upon the Vatican Council that it authorize a complete systematization of existing church law. 1'he reasons for the request arc thus summarized by Benedict XV: “In the passing of centuries a great many laws had been issued, of which some had been abrogated by the supreme authority of the Church, while others had fallen into desuetude; some had proved too difficult to enforce in view of changed conditions, others were not likely to conduce to the common good. Moreover, ecclesiastical laws had become so numerous, while at the same time so scattered through­ out various compilations that many remained unknown not only to the faithful at large, but even to the most eminent scholars” (cfr. Bull of Promulgation which prefaces the Code). Due, however, to the occupation of the city of Rome in 1870 by the Italian troops, the Council adjourned without taking action upon the proposed collection. It was left to Pius X to begin the codifica­ tion, and this he did through a Alotu proprio issued March 19, 1904. In this document the Pope outlined the general method of work: a 38 THE CODE IN GENERAL 39 special commission of cardinals was appointed to supervise the codi­ fication; they were to be assisted by a body of able theologians and canonists acting in the capacity of consultors, and these in turn were to be assisted by other ecclesiastics as collaborators; moreover, the cooperation of all the bishops of the world, and of all Catholic uni­ versity faculties was solicited. As the various Books of the Code gradually appeared, copies thereof were sent to each bishop of the world and to the supreme head of every clerical exempt religion for their study and comments. On the basis of their animadversions the Code was repeatedly modi­ fied in many of its parts. Finally, on May 17, 1917, the completed Code was officially promulgated by Pope Benedict XV through the Apostolic Constitution Providentissbna Mater Ecclesia. That all might have adequate opportunity to become acquainted with its con­ tents, the Pope decreed that the new Code was not to go into effect until May 19, 1918, i. c., one year later. Following the example of his predecessor Pius IV, who had created the Congregation of the Council to interpret authentically the decrees of the Council of Trent, Pope Benedict XV on Sept. 15, 1917, issued a Motu proprio entitled Cum juris canonici in which he created the Pontifical Commission for the Authentic Interpretation of the Canons of the Code. This was to be a body of cardinals as­ sisted by learned canonists, all to be appointed by the Roman Pontiff whenever vacancies occurred. ART. II. Material arrangement of the Code. The Code of Canon Law is officially entitled: Codex Juris Canonici Pii X Pontificis Maximi jussu digestus, Benedicti XV auctoritate promulgatus. It is divided into five books. Excepting Book I. each book again is subdivided into parts, these into sections, these into titles, chapters, articles, canons, paragraphs and numbers. But since the canons run consecutively from 1 to 2414, it suffices, when citing the Code, to simply mention the pertinent canon. The canons themselves arc short sentences. These state the law in a general way without narrating the history of the law, or adding reasons for the enactments. In this respect the new collection is a code rather than a compilation of laws transferred bodily from for­ 40 THE CODE IN GENERAL mer collections, such as the Gratian Decree was, and practically all prc-Code collections. The entire legal matter of the Code is distributed as follows: Book I, On General Norms; Book II, On Persons; Book III, On Things: Book IV, On Processes; Book V, On Offenses and Penal­ ties. This division, it may be noticed, coincides with the one em­ ployed generally in the pre-Code manuals of canon law. But it differs radically from the system of the decretals, namely: judex, judicium, clericus, connubia, crimen. Therefore, when consulting the works of the decretalists that difference must be borne in mind. The simplest method when consulting those writers would be to ascertain from the footnotes of the Code the source of the canon under con­ sideration, and having discovered the Book and Title of the Decretals, refer to the Decretal ist commentator under that Book and Title. Inserted in the Code besides the canons proper are: 1) a table of contents; 2) an historical preface, both of these by Cardinal Gas­ pard; 3) Pope Benedict’s Bull of Promulgation of the Code; 4) the Motu proprio, Cum juris canonici; 5) the formula for the pro­ fession of faith; 6) eight papal constitutions carried over bodily from the former law, the first three of which refer to papal elections, the fourth to the concursus examination for parish appointments, the fifth to the crime of solicitation, the remaining three to the use of the Pauline Privilege in certain pagan countries; 7) (in recent editions) the Motu proprio, Cum proxime, of Pius XI extending the period for beginning the conclave; 8) an analytical index by Cardinal Gas­ parri. Some editions of the Code are annotated, i. e., they carry ap­ proximately 26,000 references to pre-Code sources by way of foot­ notes. These being also the work of Cardinal Gasparri, are, like the preface and the analytical index, devoid of legal value. The original documents in their entirety which constitute the sources of the Code’s footnotes were all gathered into nine large volumes by Cardinals Gasparri and Serédi under the title: Codicis Juris Canonici Fontes. ART. IIL The authority of the Code. In general we may say that the Code is a complete, authentic, universal and exclusive collection of the common law prevailing at present in the Church. The Code is a complete collection in the THE CODE IN GENERAL 41 scuse that it carries all the general laws now in force. It is an authentic collection in the sense that all laws contained therein are genuine, it having received its authenticity from the Benedictine Bull: Providentissima Mater Ecclesia. It is a universal collection in the sense that it is a compilation of general laws, not of particular legisla­ tion. The latter is to be found mostly in the collections of the decrees of particular councils. The Code, finally, is an exclusive collection in the sense that general laws not found therein must be considered as abrogated. This amounts to saying again that the Code is a complete collection. However, the first six canons of the Code limit somewhat its binding force, or authority. That is to say, the Code is not the final law when there is question of: 1) Oriental Catholics; 2) liturgical matters; 3) concordats; 4) pre-Code acquired rights, privileges and induits; 5) certain pre-Code customs; 6) certain pre-Code laws. Let us look into each point more closely. The Code and the Oriental Church (c. 1.)—Since the 15th century when certain Oriental schismatic sects returned to unity with the Holy See, the Roman Pontiffs, partly to encourage further returns, partly to show their respect for ancient customs and practices, permitted the converted sects to retain their own liturgy and discipline. Unity in the Church of Christ is essential only with respect to faith and morals. Hence, although at times it makes mention of the Oriental Church, the Code is chiefly binding on the Latin Church. Only in two cases must Orientals fol­ low the Code: 1) when a canon merely restates the divine law, e. g., the law on the prohibition of books; 2) when a canon expressly re­ fers to the Orientals. Otherwise, Oriental Uniates continue to be governed by their own laws, although at times, especially for Orien­ tals living in the West, the Holy Sec may legislate for them by extra­ Code decrees. Concerning Oriental schismatics cfr. p. 91. The Code and liturgical laws (c. 2)—Generally speaking, the Code does not legislate in matters of rites and ceremonies. These, therefore, must be sought in the approved liturgical books, namely: the Missal, Ritual, Breviary, Pontifical and the Ceremonial of Bishops. Add, as a source of liturgical law, the seven volumes of the Decreta authentica Congregationis Sacrorum Rituum. Liturgical laws being so numerous, the reason for their exclusion from the Code is evident. Sometimes, however, especially in Book III, liturgical matters are touched upon, and if modified by the Code, take precedence over the pre-Code liturgy on the points so modified. 42 THE CODE IN GENERAL The Code and concordats (c. 3)—Concordats are solemn agree­ ments between the Roman Pontiff and the civil ruler concerning matters of mutual interest to both high contracting parties. The ob­ ject of these agreements is to avoid conflicts and disputes in matters falling within the twilight zone of both jurisdictions. The result often is a modification of the common law of the Church for the par­ ticular country in question, e. g., a reduction in the number of holydays of obligation, participation by the civil ruler in the appointment to vacant dioceses, etc. Concordats existing at the time of its promul­ gation were in no wise affected by the Code, even though they con­ tained provisions which conflicted with the canons of the Code. The reason is that the Roman Pontiff was bound by a bilateral contract, which he was not at liberty to violate by reason of the new Code of Canon Law. In the United States the common law suffers no modification on this score, concordats between our government and the Holy Sec being non-existent. The Code and acquired rights, privileges and induits (c. 4)— Pre-Code acquired rights were not revoked by the Code, unless this is expressly stipulated in some canon. We may define an acquired right to be a right which is obtained automatically by placing an act in conformity with the law in force at the time of the performance of the act. Thus, under the old law a deacon could be appointed pastor, although under the law of the Code the cleric must be a priest to obtain title to a parish. If, therefore, a deacon had been appointed to a parish shortly before May 19, 1918, and although he had not yet been ordained to the priesthood on that day, his title to the parish would not have been lost. The reason for the retention of acquired rights lies in the non-retroactivity of the law. Nor did the Code revoke privileges and induits which had been granted by the Holy See and not recalled expressly prior to May 19, 1918. This is true even though said privileges and induits ran counter to the canons of the Code, e. g., induits regarding the observance of holydays. The reason for this ruling is found in a maxim of law: Decet beneficia principis esse mansura. But the privileges or induits in question ceased if they were expressly revoked by some canon. The Code and former customs (c. 5)—Of the customs in force at the time of the promulgation of the Code (May 19, 1918), some were abrogated, others not. Customs which the Code expressly reprobates must be considered abrogated. This applies whether the custom was universal or par­ THE CODE IN GENERAL 43 ticular, centenary or not. In fact, such customs arc not permitted to revive in future, for if reprobated, they are considered corruptions of the law. Customs contrary to the prescriptions of the Code, provided they are not reprobated, may be tolerated if they were centenary or immemorial customs, and provided the Ordinaries believe they cannot be removed without serious inconvenience. Contrary customs which were neither centenary nor immemorial, even though they are not reprobated by the Code, automatically ceased to exist upon the pro­ mulgation of the new law. This does not forbid their revival in the future, cfr. p. 101. The Code makes no mention of the status of customs beyond the law, i. c., which enlarged the obligations of the Code’s canons. If such customs were particular, all authors agree that they continued in force; if universal, they arc divided in their opinion. For the rest, it is diflicult to imagine a universal custom beyond the law, save pos­ sibly the general custom in the Western Church banning the clerical beard. The Code and the former legislation (c. 6)—All written laws in force prior to the time of the Code were abrogated if they were not found in the Code. This is true of all contrary legislation whether universal or particular. It is true likewise of all universal pre-Code laws which though not contrary to the prescriptions of the Code, yet merely enlarged the law of the Code. It is not true of particular legislation praeter jus Codicis. Hence, the decrees, c. g., of the plen­ ary councils of Baltimore, of provincial councils, of diocesan synods, etc., which did not run counter to the canons of the Code remained in force. For the most part the Code retains the former discipline. Hence: 1 ) Those canons which merely restate the former law without change must be construed as the old law was construed ; 2) Those canons which partly agree and partly disagree with the former law, insofar as they disagree must be construed in the light of their own wording; 3) In doubt whether the ruling of some canon is at variance or not with the former legislation, it must be presumed to agree with the old law. But if the former law was penal in nature and the Code now makes no mention of the penalty when restating the Jaw, the penalty must be considered abolished. BIBLIOGRAPHY 44 ART. IV. LITERATURE ON THE CODE General Bibliography 1. Sources Acta Apostolicae Sedis, Commentarium Officiale, 1909Acta et Decreta Concilii Plenarii Baltimorensis Tertii, Baltimore: John Murphy Co., 1886. Acta Sanctae Sedis, 41 vols. Rome, 1865-1909. Bouscaren, T.L., The Canon Law Digest, 2 vol., Milwaukee: Bruce, 1942. Codicis Juris Canonici Fontes, Cura Card. Gasparri et Serédi, 9 vols., Vatican Press, 1923-1933. Diocesan Statutes. Cfr. p. 34-36 of Manual for other source works. Books of General Reference Augustine (Bachofen), Charles, “A Commentary on Canon Law,” 8 vols., St. Louis: Herder, 1930. Reste, Ulric, ‘‘Introductio in Codicem,” Collegeville, Minn., St. John’s Abbey Press, 1938. Blat, Albertus, “Commentarium Textus Codicis Juris Canon­ ici,” 5 vols., Rome: Angelico College, 1934. Bouzelet, Horatius, “The Pastoral Companion,” Chicago: Franciscan Herald Press, 1943. Bouscaren-Ellis, “Canon Law, A Text and Commentary,” Milwaukee: Bruce, 1946. “Catholic Encyclopedia, The” 17 vols., New York, 1909-1912, for historical and doctrinal material. Cocchi, Guidus, “Commentarium in Codicem Juris Canonici,” 8 vols., Turin: Marietti, 1940. Coronata, Matthaeus Conte a, “Institutiones Juris Canonici,” 5 vols., Turin: Marietti, 1936. Lydon, P. J., “Ready Answers in Canon Law,” New York; Benzinger Bros., (revised edition in preparation). Priimmer, Dominicus, “Manuale Juris Canonici,” Friburg: Herder, 1927. X’crmccrsch-Crcusen. “Epitome Juris Canonici,” 4 vols., Rome: Gregorian University, 1937. BIBLIOGRAPHY 45 Wernz-Vidal, “Jus Decretalium,” 7 vols., Rome: Gregorian University, 1938. Woywod-Smith, “A Practical Commentary on the Code oi Canon Law,” 2 vols., New York; Wagner, 1939. Periodicals Annuario Pontificio, Vatican Press, for statistics on the Roman Curia, Catholic Hierarchy, Papal Household, Religious Orders and Congregations etc. throughout the universal Church. Apollinaris, a canon law periodical in Latin, published at Rome: 1928Catholic Directory, The Official, New York: Kenedy & Sons. Clergy Review, The, London: 1931Commentariurn pro Religiosis et Missionariis, Rome: 1920Ecclesiastical Review, The, Catholic University of America, Washington, D. C. : 1889Ephimerides Liturgicae, Rome: 1886H untiletic and Pastoral Review, The, New York; Wagner: 1900Irish Ecclesiastical Record, The, Dublin: 1864Jurist, The, Catholic University Press, Washington, D. C. : 1941Periodica de Re Morali, Canonica, Liturgica, Brugis: 1905Priest, The, Huntington, Ind.: 1944- Special Bibliography Note: In the special bibliography to follow under the classifica­ tion: Articles and Consultations we have drawn our material ex­ clusively from four sources indicated as follows: CST. This abbreviation is for The Casuist, a 5-vol. work by Wagner of New York containing a selection of practical cases taken from the Homiletic and Pastoral Review appearing mostly before the Code was published, but amended to conform to the Code law by means of special addenda published with the later editions of The Casuist. ER. is our abbreviation for The Ecclesiastical Review. HPR. stands for The Homiletic and Pastoral Review. Jurist is the fourth source of our references, and indicates The Jurist listed above. Among the Books of Special Reference arc listed over 200 dis­ sertations, or Canon Law Studies, submitted to the Canon Law Fac­ ulty of Catholic University, Washington, D. C., by aspirants to the 46 BIBLIOGRAPHY doctorate in Canon Law in partial fulfillment of the requirements for the degree. These dissertations are printed works, each averaging some 250 pages, paper bound, the first half of the study being his­ torical, the second half juridical, or a commentary on the present law of the Church as contained in the Code. For the sake of brevity they arc referred to herein as: C. U. Press, i.e., the Catholic University of America Press, Washington, D. C. Of the older dissertations many are now out of print. For further information address The Librarian of the University, or communicate with the authors directly whose address can be found in the Catholic Directory. The Code in General Books of Special Reference Cicognani, Amicto G., “Canon Law,” Philadelphia: Dolphin Press, 1935. Attwatcr, Donald, “The Catholic Eastern Churches,” Mil­ waukee; Bruce, 1935. Duskie, fohn A., “The Canonical Status of the Orientals in the United States,” C. U. Press, 1928. Prunskis, Joseph, “Comparative Law, Ecclesiastical and Civil, in Lithuanian Concordat,” C. U. Press, 1945. Neuberger, Nicholas J., “Canon 6 or the Relation of the Codex Juris Canonici to the Preceding Legislation,” C. U. Press, 1927. Barrett, John D. M., “A Comparative Study of the Third Plenary Council of Baltimore and the Code,” C. U. Press, 1932. Articles and Consultations Providentissima Mater Ecclesia translated, ER. 1917, Oct. 357- 360. The Uniate Oriental Churches, ER. 1918, Feb. 113-130. Orientals and the sacramental law of the Code, ER. 1919, Sept. 225-238. Priests of the Oriental rite in the U. S., ER. 1930, May 498502. The Syrian Liturgy, ER. 1934, Jan. 57-67. Spiritual care of the Ruthenians in the U. S., ER. 1937, Nov. 448-461. Canonical regulations for Greek-Ruthcnians in the U. S., ER. 1929, Aug. 167-177. Functions of the Code’s sources or footnotes, ER. 1924, Jan. 77-83. BIBLIOGRAPHY ♦7 General Norms—Book I Books of Special Reference Manuals of Moral Theology under De Legibus. Cicognani, Amleto G., “Canon Law,” Philadelphia: Dolphin Press, 1935. Frison, Basil, “The Retroactivity of Law,” C. U. Press, 1946. McCloskey, Joseph A., “The Subject of Ecclesiastical Law Ac­ cording to Canon 12,” C. U. Press, 1942. Hammill, John L., “The Obligations of the Traveler Accord­ ing to Canon 14,” C. U. Press, 1942. Schmidt, John R., “The Principles of Authentic Interpretation in Canon 17 of the Code of Canon Law,” C. U. Press, 1941. Guilfoyle, Merlin J., “Custom,” C. U. Press, 1937. Dube, .Arthur J., “The General Principles for the Reckoning of Time in Canon Law,” C. U. Press, 1941. O'Neill, William H., “Papal Rescripts of Favor,” C. U. Press, 1930. Roelker, Edward G., “Principles of Privilege According to the Code of Canon Law,” C. U. Press, 1926. Matulcnas, Raymond A., “Communication, a Source of Privileges,” C. U. Press, 1943. Reilly, Edward M., “The General Norms of Dispensation,” C. U. Press, 1939. Kubelbeck, William J., “The Sacred Pcnitcntiaria and Its Relation to Faculties of Ordinaries and Priests,” C. U. Press, 1918. O'Keefe, Gerald M., “Matrimonial Dispensations, Powers of Bishops. Priests and Confessors,” C. U. Press, 1927. Motry, Hubert L., “Diocesan Faculties According to the Code of Canon Law,” C. U. Press 1918. Articles and Consultations When must decrees and regulations of the Holy See be put into effect? HPR. 1930, Dec. 295. The traveler and local statutes, Jurist, 1942, Apr. 105-119. Who can propose doubts to the Code Committee? ER. 1918, May 543. Can civil law always supplement silence of canon law? ER. 1920, Nov. 460-465. Serves a Protestant meat on Friday, CST. V. 330. When does a particular precept cease? HPR. 1928, Apr. 755. 48 BIBLIOGRAPHY Does personal censure hind outside of diocese? CST. Ill, 104; I, 44. Purposely visits neighboring diocese to escape local fast, CST. IV. 53. The force of custom in the Church, HPR. 1938, Feb. 520-522. Fast and daylight saving time, ER. 1918, May 565-567; IIPR. 1937, July 962. ' Computing midnight, ER. 1932, Aug. 176-180; 1939, Nov. 399-413; 1940, Sept. 279-283; HPR. 1923, Sept. 1301. Eating meat after midnight and saying Mass, ER. 1942, March 217-220. Sun Time simplified, E.R. 1939, July 1-8. “The Encyclopedia Americana,” under Time. Mohammedan marriage dispensation through inadvertance, ER. 1938, Apr. 478. fhe difference between privilege and dispensation, HPR. 1938, Nov. 168. Can vicar-general permit in this case what bishop forbade? CST. Ill, 104. When a privilege cannot be renounced, ER. 1918, Sept. 308. How confession faculties for the neighboring diocese were interpreted, CST. HI, 238. Can confessor grant a fast dispensation to a wife through her husband who confesses? CST. Ill, 286. Is a year-old unused dispensation granted by the Holy See still good? CST. IV. 59. Persons in General Books of Special Reference Costello, John M., “Domicile and Quasi-Domicile,” C. U. Press, 1930. Brown, Mr. Brendan Francis, “The Canonical Juristic Person­ ality With Special Reference to Its Status in the United States of America,” C. U. Press, 1927. Olalia, Alexander A., “A Comparative Study of the Christian Constitution of States and the Constitution of the Philippine Com­ monwealth,” C. U. Press, 1944. Connors, Charles P., “Extra-Judicial Procurators in the Code of Canon Law,” C. U. Press, 1944. BIBLIOGRAPHY 49 Articles and Consultations When the advice or consent of a body is needed must they be called together? HPR. 1931, Sept. 1310-1311. Acquiring domicile and quasi-domicile for marriage, cfr. refer­ ence material in chapter on marriage herein. Clerics in General Manuals of Moral Theology under De Praeceptis or De Obli­ gationibus or De Statibus Particularibus. McBride, James T., “Incardination and Excardination of Seculars,” C. U. Press, 1941. McGrath, James, “The Privilege of the Canon,” C. U. Press, 1946. Downs, John E., “The Concept of Clerical Immunity,” C. U. Press, 1941. Brunini, Joseph B., “The Clerical Obligations of Canons 139 and 142,” C. U. Press, 1937. Manning, Joseph L., “The Free Conferral of Offices,” C. U. Press, 1946. Gallihcr, Daniel M., “Canonical Elections,” C. U. Press, 1917. Parsons, Anscar J., “Canonical Elections,” C. U. Press, 1939. McDevitt, Gerald V., “The Renunciation of an Ecclesiastical Office,” C. U. Press, 1945. Kearney, Raymond A., “The Principles of Delegation,” C. U. Press, 1929. Keene, Michael J., “Religious Ordinaries and Canon 198,” C. U. Press, 1942. Miaskicwicz, Francis S., “Supplied Jurisdiction According to Canon 209,” C. U. Press, 1940. Findlay, Stephen W., “Canonical Norms Governing the Deposi­ tion and Degradation of Clerics,” C. U. Press, 1941. Sweeney, Francis P., “The Reduction of Clerics to the Lay State,” C. Ü. Press, 1945. Articles and Consultations “The Encyclopedia Americana” under Church Government. Incardination and excardination, ER. 1927, Mar. 317-319. A case of excardination and incardination, ER. 1918, [une 687-690. Incardination questions, HPR. 1923, June 969. Transferring a priest to another diocese, HPR. 1927, Mar. 637. 50 BIBLIOGRAPHY Incardination implied in benefice, HPR. 1929, Mar. 644. The privilegium fori, ER. 1925, Aug. 159-171. Ex-war priests, ER. 1919, Mar. 295; Apr. 378-388. Dail}· meditation and the Code, ER. 1919, Oct. 427-429. Dances and the Council of Baltimore, ER. 1918, May 537; 1919, Aug. 200, Oct. 445; 1923, Feb. 195; 1934, May 537-538; HPR. 1923, Jan. 414-416; 1932, July 1078; 1938, Noy. 173. Can secular priests spontaneously retire? ER. 1921, Oct. 419. Extent of canonical obedience, CST. II, 188. Clerical obedience to decree concerning horse races, HPR., 1925, July, 988. Clergy and prize fights, HPR. 1929, Jan. 412. Clerics and the theater, HPR. 1936, Aug. 1188; 1937, Nov. 181. What occupations are forbidden to priests? ER. 1918, May 560-561. Stocks and bonds and the clergy, ER. 1932, Oct. 409-411; HPR. 1930, Mar. 626; 1940, Oct. 81; CST. IV. 229. A case of trading and clerics, HPR. 1926, Dec. 295. Clerical dress, HPR. 1935, Oct. 72-74. Style of the diocesan cassock, ER. 1933, July 82. Obligation to wear the clerical garb, ER. 1935, Nov. 525. Discarding the clerical garb on vacations, HPR. 1923, July 1093. Lav secretaries in parish offices, HPR. 1923, July 1090; Nov. 181. Near East privilege as to divine office, how interpreted, HPR. 1933, Nov. 183; ER. 1941, July 36-41. When the ordo errs, HPR. 1922, Feb. 536. Priests as members of the Rotary Club, HPR. 1927, .Apr. 755; 1930, Apr. 750-751 ; ER. 1935, May 541-542. Priests of the Oriental rite in the U. S., ER. 1930, May 498502. Are religious bound to attend diocesan conferences? ER. 1937, Aug. 191-193. Is diocesan support obligatory for deposed priests? CST. IV. 1. An invalid ordination case, CST. V, 238. Voting for oneself does not always invalidate an election, HPR. 1927, Sept. 1320; Dec. 297. When a vote given to oneself decided an election, HPR. 1929, Oct. 72-75. Resigning a parish, ER. 1926, Mar. 311-312. Recalling a resignation of a parish, ER. 1926, Aug. 188. BIBLIOGRAPHY 51 Was it simony? ER. 1921, Aug. 181-183. Can one dispense himself? HPR. 1928, July 1103. Common error and lack of confession faculties, ER. 1918, Nov. 541; 1923, May 515-516. Common error and assisting at marriage, cfr. Manual Chapter on Marriage, Art. on Solemnization. Papal Office and Government Books of Special Reference Hynes, Harry G., “The Privileges of Cardinals,” C. U. Press, 1945. Dziob, Michael J., “The Sacred Congregation for the Oriental Church,” C. U. Press, 1946. Kubelbeck, William J., “The Sacred Penitcntiaria and Its Relations to Faculties of Ordinaries and Priests,” C. U. Press, 1918. Winslow, Francis J., “Vicars and Prefects Apostolic,” C. U. Press, 1924. McDonough, Thomas J., “Apostolic Administrators,” C. U. Press, 1941. Benko, Matthew A.. “The Abott Nullius,” C. U. Press, 1943. Nainfa, John A., “The Costume of Prelates,” Baltimore: John Murphy Co., 1933. “Annuario Pontificio” for statistics on the Roman Curia, Papal Household, etc. Articles and Consultations The Monarchical constitution of the Church, ER. 1925, Dec. 575- 584. The confessor takes a case to the S. Penitentiary, CST. Ill, 175. The Apostolic Delegation at Washington, ER. 1936, Dec. 576- 592. Status of Protonotarics Apostolic, ER. 1924, Apr. 411-413. Bishops Books of Special Reference Ryan, Gerald A., “Principles of Episcopal Jurisdiction,” C. U. Press, 1939. BIBLIOGRAPHY 52 Dicderichs, Michael F.» "The Jurisdiction of the Latin Ordi­ naries Over Their Oriental Subjects,” C. U. Press, 1946. Eidenschink, John A., "The Election of Bishops in the Letters of Pope Gregory the Great,” C. U. Press, 1946. Donnellan, Thomas A., "The Obligation of the Missa pro Populo,” C. U. Press, 1942. Slafkosky, Andrew L., "The Canonical Episcopal Visitation of the Diocese,” C. U. Press, 1941. Lynch, George E., "Coadjutors and Auxiliaries of Bishops,” C. U. Press, 1946. Donnelly, Francis B., "The Diocesan Synod.” C. U. Press, 1932. "The Official Catholic Directory,” P. J. Kenedy & Sons, N. Y., for statistics on bishops in all English-speaking countries. “Annuario Pontificio,” for statistics on bishops throughout the world. Articles and Consultations How candidates to bishoprics arc selected in the U. S., ER. 1925, Dec. 621-622. Formulary to be used in the bishop’s report to the Holy See, ER. 1919, Apr. 396-417. Administrative and judicial acts of the bishop, HPR 1927, June 989. A bishop appoints pastors after being notified of his own trans­ fer, HPR. 1927, July 1223. The Episcopal Curia Books of Special Reference Campagna, Angelo, “II Vicario Generale del Vcscovo,” C. U. Press. 1931. Prince, John E., “The Diocesan Chancellor,” C. U. Press, 1942. Louis, William F., "Diocesan Archives,” C. U. Press, 1941. Motry, Hubert L., "Diocesan Faculties According to the Code of Canon Law,” C. Ü. Press, 1922. Connolly, John P., “Synodal Examiners and Parish Priest Consuitors,” C. Û. Press, 1943. Klekotka, Peter J., "Diocesan Consultors,” C. U. Press, 1920. Jaeger, Leo A., “The Administration of Vacant and QuasiVacant Episcopal Sees in the United States,” C. U. Press, 1932. BIBLIOGRAPHY 53 Zaplotnik, Johannes L., “De Vicariis Foraneis,” C. U. Press, 1927. Reading material on the diocesan court will be found in Book IV of this Manual. “The Official Catholic Directory,” Kenedy & Sons, N. Y-> lists the personnel of the episcopal curia of each diocese. Articles and Consultations When the vicar-general acts with special mandate, is it ordinary or delegated jurisdiction? Jurist, 1942, Oct. 346-362. Religious as parish priest consultors, ER. 1933, Nov. 525-527. Authority of vicars forane, ER. 1923, Aug. 199. Can the chancellor be made a general delegate of the bishop? Jurist, 1943, Oct. 567-586. Pastors and Parishes Books of Special Reference Manuals of Moral Theologj· under De Sacrificio Missae for the Missa pro populo obligation. Manuals of Pastoral Theologj·. Golden, Hcnrv F., “Parochial Benefices in the New Code," C. U. Press, 1925. Connolly, Nicholas P., “The Canonical Erection of Parishes,” C. U. Press, 1938. Mundy, Thomas M., “The Union of Parishes,” C. U. Press, 1944. Coadv, John J., “The Appointment of Pastors,” C. U. Press, 1929. Connor, Maurice, “The Administrative Removal of Pastors,” C. U. Press, 1937. Galvin, William A., “The Administrative 'Transfer of Pastors,” C. U. Press, 1946. Koudelka, Charles J., “Pastors, Their Rights and Duties According to the New Code of Canon Law,” C. U. Press, 1921. Donnell an, Thomas A., “The Obligation of the Missa pro Populo,” C. U. Press, 1942. Reilly, Peter, “Residence of Pastors,” C. U. Press, 1935. Ferry, William A., “Stole Fees,” C. U. Press, 1930. Kremer, Michael N., “Church Support in the United States,” C. U. Press, 1930. O’Rourke, James J., “Parish Registers,” C. U. Press. 1934. Clarke, Thomas J., “Parish Societies,” C. U. Press, 1943. 54 BIBLIOGRAPHY Articles and Consultations Arc parishes in the U. S. canonical ones? ER. 1918, Nov. 537. Parishes without boundary lines, ER. 1930, Oct. 391-398. Parish boundaries, how determined, ER. 1937, Feb. 190. Dependent chapels and main church, HPR. 1922, Feb. 539. Status of chapels of case, HPR. 1925, Apr. 728. Must a parish have a church? HPR. 1929, Mar. 645. What are language parishes? HPR. 1933, July 1084. National parish membership, ER. 1932, Nov. 531-537; 1933, Mar. 314-316. Who belongs to national, and who to territorial parishes? ER. 1927, Jan. 90-91. The juridical status of religious parishes under the Code, Jurist, 1941, Oct. 329-335; 1943, Jan. 117-128. Are colored parishes national parishes? ER. 1919, Jan. 85; 1943, May 382-384. Status of foreign language pastors, HPR. 1923, Apr. 747. Latin pastors and Oriental parishioners, ER. 1932, July 76-77. Interdiocesan jurisdiction, ER. 1933, Mar. 311-314. The cathedral pastor’s status, ER. 1924, Mar. 312-313; May 520; June 633-636. Do they belong to the closer parish? HPR. 1925, May 875. Paving pew rent in one church and having membership in another^ HPR. 1922, Mar. 654; ER. 1926, Apr. 413; 1930, Apr. 423-425. A question of domicile, ER. 1926, May 533. Relation of pastor to religious institutions within the parish, HPR. 1933, May 853-855; cfr. also reading material under Chap­ lains. Status of pastors appointed after bishop receives notice of his transfer, HPR. 1927, July 1223. Appoints less worthy priest to parish to keep him in diocese— simony? CST. IV, 153. Appointing irremovable pastors in the U. S., ER. 1931, Oct. 388-391 Installation of pastors, ER. 1934, Dec. 620-624. Temporalities of parish priests, ER. 1920, May 545-550. The law on fees and stipends, Jurist, 1941, Oct. 335-342. The pastor’s revenues as in canon 463, Jurist, 1943, Apr. 284-305. Do pastoral fees go to church? HPR. 1922. June 1018. Jura stolae question, ER. 1924, May 526-527. BIBLIOGRAPHY 55 Docs excess of customary fee belong to the pastor? HPR. 1922, July 1128. To whom do the fees belong as between two pastors? HPR. 1922, Sept. 1343. Pastor’s jurisdiction over parish societies, ER. 1932, Sept. 307-311. The pastor owner or administrator of church society funds? HPR. 1931, May 864-865. Pastoral vacations, ER. 1941, Mar. 278. Vacation with pay? HPR. 1932, Oct. 67. Must pastor visit seriously ill apostate parishioner although not requested to do so? CST. Ill, 309. Pastors and weekday Masses, CST. V, 139. Ecclesiastical legislation on the Missa pro populo, ER. 1919, Oct. 363-371. When did Missa pro populo obligation begin in the U.S.? HPR. 1923, Apr. 746. Ethics of the Missa pro populo, ER. 1919, Oct. 424-427. Meaning of ex justitia in Missa pro populo, ER. 1919, Nov. 589-590. A Missa pro populo case, ER. 1936, May 532. Missa pro populo and suppressed feasts, HPR. 1930, Dec. 296-297. Missa pro populo and transferred feasts, ER. 1929, Apr. 409411. Missa pro populo on patronal feasts, ER. 1934, Apr. 428-430. Missa pro populo in poor parishes, HPR. 1931, Apr. 747-748. Does reduction of Masses pro populo obligation continue after bishop’s death if granted by latter’s authority? ER. 1932, Sept. 301-304. Personal and local obligation of the Missa pro populo, ER. 1933, Oct. 430. What cause justifies transference of Missa pro populo to an­ other priest? ER. 1921, Sept. 300. Habitually delegating the Missa pro populo, ER. 1924, June 638. Transferring the Missa pro populo to enjoy high Mass stipend, ER. 1941, Oct. 304-306. Anticipating the Missa pro populo, ER. 1918, Sept. 303. Missa pro populo and Gregorian Masses, ER. 1941, Oct. 325. Missa pro populo if impeded, ER. 1918, .May 561-562. Five questions concerning the Missa pro populo, ER. 1920, Sept. 292-294. BIBLIOGRAPHY 56 Must Missa pro populo omitted in good faith still be said? HPR. 1940, Aug. 1239; 1942, Aug. 1060. Missa pro populo and binated Mass, HPR. 1928, Dec. 300. Immaterial which of two Sunday Masses is applied pro populo, HPR. 1938, Mar. 633. Binated stipend to the bishop, ER. 1941, Oct. 306-309. Some bination questions, HPR. Oct. 1923, 60-63. Parish registers, ER. 1921. July 1-12. Secret parish records, HPR. 1925, Jan. 408. Is record of sick calls required? HPR. 1941, June 941. Can register entries be delegated to others? HPR. 1923, Oct. 75. Lav secretaries in parish offices, HPR. 1923, July 1090; Nov. 181. Parochial Vicars and Chaplains Books of Special Reference Bastnagel, Clement V., “The Appointment of Parochial Adjutants and Assistants,” C. U. Press, 1930. Drumm, William M., “Hospital Chaplains,” C. U. Press, 1943. Articles and Consultations Chaplains and parish rights, ER. 1919, Apr. 455. Six questions concerning spiritualities in hospitals, ER. 1922. Feb. 185-192. Jurisdiction of institution chaplains, ER. 1927, Jan. 93-95; 1934. Sept. 308; 1935, Mar. 295-297. Status of chaplains, ER. 1927, Feb. 212-213; HPR. 1924, Feb. 513; Mar. 620. Hospital chaplain’s rights, ER. 1935, Feb. 197; HPR. 1920. Dec. 221-222. Has chaplain right to funeral service of Sister inmate? ER. 1941, Nov. 420. Chaplains and Holv Week functions, HPR. 1923, May 857859. Chaplain, not Sister, examines celebret, HPR. 1933, Oct. 73. Is chaplain’s permission to hear patient's confession necessary? ER. 1931, Nov. 526. Can college and university chaplains be given parochial rights? HPR. 1934, Mar. 632. BIBLIOGRAPHY 57 For further material on the status of parish vicars and chaplains, consult the headings below under the individual sacraments. Religious Books of Special Reference Manuals of Moral Theology under De Praeceptis or De Obli­ gationibus or De Statibus Particularibus. Creusen, Joseph, “Religious Men and Women in Church Law,” Milwaukee: Bruce, 1941. Papi, Hector, “Religious in Church Law,” New York; Kenedy & Sons, 1924. Schaefer, Timotheus, “De Religiosis,” Rome: S.A.L.E.R., 1940. Gcser, Fintan, "The Canon Law Governing Communities of Sisters,” St. Louis: Herder, 1938. Orth, Clement R., "The Approbation of Religious Institutes,” C. U. Press, 1931. Flanagan, Bernard J., "The Canonical Erection of Religious Houses.” C. U. Press, 1943. Lynch, Timothy, "Contracts Between Bishops and Religious Congregations,” C. Ù. Press, 1946. Frcriks, Celestine A., "Religious Congregations in Their Ex­ ternal Relations,” C. U. Press, 1916. Farrell, Benjamin F., "The Rights and Duties of the Local Ordinary Regarding Congregations of Women Religious of Pontifi­ cal Approval,” C. (J. Press, 1941. Papi, Hector, “The Government of Religious Communities,” New York: Kenedy & Sons, 1919. Lewis, Gordian, "Chapters in Religious Institutes,” C. U. Press, 1943. Keene, Michael J., "Religious Ordinaries and Canon 198,” C. U. Press, 1942. Clancy, Patrick M., "The Local Religious Superior,” C. U. Press, 1943. Bowe, Thomas J., "Superioresses in Communities of Women Religious,” C. U. Press, 1946. Reilly, Thomas F., "Visitation of Religious,” C. U. Press, 1938. McCormick, Robert E., “Confessors of Religious,” C. Ü. Press, 1926. McManus, James E., "The Administration of Temporal Goods in Religious Institutes,” C. U. Press, 1937. Kealy, Thomas M., “Dowry of Religious Women,” C. U. Press, 1941. 58 BIBLIOGRAPHY Bakalarczyk, Richard, “De Novitiatu,” C. U. Press, 1927. Balzer, Ralph F., “The Computation of Time in a Canonical Novitiate,” C. Ü. Press, 1946. Brockhaus, Thomas A., “Religious who arc known as Conversi," C. U. Press, 1946. Cotel, Peter, “A Catechism of the Vows,” New York: Benzin* ger, 1924· Papi, Hector, “Religious Profession,” New York: Kenedy & Sons, 1919. Frey, Wolfgang N., “The Act of Religious Profession,” C. U. Press, 1931. Bolduc, Gaticn, “Les Études dans les Religions Cléricales,” C. U. Press, 1942. Gill, Nicholas, “The Spiritual Prefect in Clerical Religious Houses of Study,” C. U. Press, 1946. Turner, Sidney J., “The Vow of Poverty,” C. U. Press, 1929. Schaaf, Valentine T., “The Cloister,” C. U. Press, 1921. Barrj’, Garrett F., “Violation of the Cloister,” C. U. Press, 1942. Shuler, Ralph V., “Privileges of Religious to Absolve and Dispense,” C. U. Press, 1943. Melo, Antonius, “De Exemptione Regularium,” C. U. Press, 1921. O'Brien, Joseph D., “The Exemption of Religious in Church Law,” Milwaukee: Bruce, 1942. Meyer, Louis G., “Alms-Gathering by Religious,” C. U. Press, 1945. Kowalski, Romuald E., “Sustenance of Religious Houses of Régulais.'· C. U. Press. 1944. Piontek, Cyrillus, “De Induito Exclaustrationis nccnon Saccularizationis,” C. U. Press, 1925. Riesner, Albert J., “Apostates and Fugitives From Religious Institutes,” C. U. Press, 1942. O’Neill, Francis J., “The Dismissal of Religious in Temporary Vows,” C. Û. Press, 1942. O'Leary, Charles G., “Religious Dismissed After Perpetual Profession,” C. U. Press, 1943. Michal icka, Wenceslas C., “Judicial Procedure in Dismissal of Clerical Exempt Religious,” C. Ù. Press, 1923. “Annuario Pontificio” for statistics on religious throughout the universal church. “The Official Catholic Directory,” New York, Kenedy & Sons, published annually, for statistics on religious in the U. S. BIBLIOGRAPHY 59 Articles and Consultations Are religious vows opposed to true Americanism? HPR. 1938, Feb. 524-526. The Four Great Rules of Religious Orders, HPR. 1939, Oct. 68-70. Revision of rules and constitutions of religious communities, ER. 1919, Jan. 27-36. How new religious Congregations begin, ER. 1926, Dec. 661. Suggested questionnaire for use of bishops in visitation of non­ exempt religious communities, Jurist, 1942, (supplement to July 1-16)). “Canon 516,” ER. 1937, Nov. 482. Pastor’s jurisdiction over the lay help in religious houses of women, ER. 1926, Jan. 85. The pastor and convent schools, ER. 1928, Jan. 76-78; May 525. Can religious superiors be deposed or transferred before the expiration of their three years’ term? ER. 1919, Feb. 183. Perennial offices of minor religious superiors, ER. 1929, Sept. 313-315; HPR., 1921, Mar. 552; May 749-751; June 947. Re-election at end of unexpired term of predecessor in office; HPR. 1920, Oct. 38. Administrative removal of religious from office, Jurist, 1942, Jan. 32-46. Ordinary and extraordinary confessors, ER. 1918, May 556-557. Confessing religious women, ER. 1926, Jan. 34-44. Some doubts concerning extraordinary confessors of Sisters, ER. 1936, Sept. 291-293. Absence of confessional and validity of Sisters’ confessions, ER. 1940, June 532. Meaning of c. 524, §1. ER. 1938, Dec. 554-556. Enforcing weekly confessions in religions, ER. 1941, Nov. 422. Appointing parish priests as confessors to Sisters of the parish school, HPR. 1921, Sept. 1148. Does the confessor in this case interfere with the external gov­ ernment of the community? ER. 1944, Nov. 393. Hearing a Sister’s confession in the sacristy, HPR. 1932, Apr. 747; 1933, Feb. 523. The confessional for Sisters, HPR. 1933, May 857. A religious house borrows money, ER. 1940, Feb. 170. Useful questionnaires prior to admission of postulants and novices, HPR. 1932, June 960-964. 60 BIBLIOGRAPHY Shortening the postulancy, ER. 1929, July 92; 1941, Nov. 418-420. Secular deacon desires to become a religious, HPR. 1926, Nov. 192. Seminarian joining a religion, and compensation to the bishop, HPR. 1929, June 996. Can religious vows be anticipated? HPR. 1925, Sept. 1306. Advisory and decisive vote of chapter when admitting to reli­ gious profession, HPR. 1930, June 984-986. The vow of poverty, ER. 1923, June 554-561 ; 1928, Mar. 308; HPR. 1931, Nov. 186; 1927, Dec. 302; 1940, Sept. 1357. Privileges of religious Orders as to ordination, ER. 1925, Nov. 544. Collections bv religious and the authority of the bishop, HPR. 1927, Mar. 637. ‘ Religious as parish priest consultors, ER. 1933, Nov. 525-527. A lay brother is dispensed from solemn vows, CST. V, 98. Offices secularized religious priests may hold in the diocese, HPR. 1931, Jan. 405. Ex-religious disqualified for certain offices, HPR. 1935, July 1062. Can ex-religious be pastors? ER. 1933, Nov. 525-527. Ex-religious confessing religious women, ER. 1934, Oct. 420. The Laity Books of Special Reference Manuals of Pastoral Theology under Parish Societies, Confra­ ternities, etc. Reinman, Gerald J., “The Third Order Secular of St. Francis,” C. U. Press, 1928. Borkowski, Aurelius L., “De Confraternitatibus Ecclesiasticis,” C. U. Press, 1918. Clarke, Thomas J., “Parish Societies,” C. U. Press, 1943. Articles and Consultations Not every Catholic society is an ecclesiastical one, HPR. 1940, Feb. 517. Can absent and deceased persons be taken into membership of pious sodalities? HPR. 1932, Jan. 411-413. How to enroll in confraternities and pious unions, HPR. 1934, Aug. 1197. The confraternity of the Blessed Sacrament, ER. 1933, Feb. 266-274. BIBLIOGRAPHY 61 The confraternity of Christian Doctrine, ER. 1935, May 543; 1938, Apr. 476-478. Lapse of membership in pious unions, ER. 1939, Aug. 169. Suppressing a parish society, ER. 1937, Mar. 301-306. Is the pastor owner or administrator of parish society funds? HPR. 1931, May 864-866. The Sacraments in General Books of Special Reference Manuals of Moral and Pastoral Theology. King, James I., “The Administration of the Sacraments to Dying Non-Cathoiics,” C. U. Press, 1924. Sullivan, Eugene H., “Proof of the Reception of the Sacra­ ments,” C. U. Presi, 1944. Ryder, Raymond A., “Simony,” C. U. Press, 1931. Articles and Consultations Was it simony? ER. 1921, Aug. 181-183. Baptizing dying Protestants, ER. 1924, Sept. 317. Baptizing unconscious dying persons, ER. 1933, Dec. 638. An unconscious Protestant is baptized conditionally, CST. IV, 164. Baptizing a conscious dying material heretic, CST. II, 169. Baptizing a dying petitioner who refuses to embrace the Catholic faith, ER. 1921, Sept. 304; 1929, Sept. 309-310. Sacraments to dving non-Catholics, ER. 1921, Mar. 255-260; 1931, Mar. 296; HPR. 1922, June 1014. Sacraments to a dying convert, ER. 1920, Apr. 476. Helping dying Protestants, ER. 1922, Nov. 444-446. Can a priest absolve his dving non-Catholic father? CST. Ill, 40. Orientals and the Code legislation on the sacraments, ER. 1919, Sept. 225-238. Baptism Books of Special Reference Waldron, Joseph F., “The Minister of Baptism.” C. U. Press, 1942. Goodwine, Joseph G., “The Reception of Converts,” C. U. Press. 1944. 62 BIBLIOGRAPHY Kearney, Richard J., “Sponsors at Baptism According to the Code of Canon Law,” C. U. Press, 1925. Sullivan, Eugene IL, “Proof of the Reception of the Sacra­ ments,” C. U. Press, 1944. Manuals of Moral Theology under Baptism. Articles and Consultations Who has the right to baptize a convert as between pastor and instructor? HPR. 1928, May 878; ER. 1936, May 531-532. Baptizing infant peregrini, CST. I, 151. Baptizing unconscious dying persons (cfr. material in preced­ ing section). Instructions before baptizing a child, ER. 1930, Dec. 631; HPR. 1935, May 847, Dec. 292. Baptizing the feeble minded, HPR. 1931, Nov. 184. May a child of invalidly married parents be baptized? ER. 1932, Nov. 524-526; HPR. 1922, Jan. 415; 1940, May 896; 1924, July 1063. Baptizing children of careless Catholic married to non-Catholic, HPR. 1924, May 849. Can convert be baptized who must practise faith in secret? HPR. 1934, Dec. 289-290. How to receive converts into the Church, ER. 1932, Nov. 526530; HPR. 1920, Oct. 39; 1933, Jan. 412-416; 1934, Apr. 743. Must schismatic converts be rebaptized? CST. IV. 303. Baptism of adults, ER. 1931, Nov. 527; HPR. 1932, Sept. 1301. Baptism of foundlings, ER. 1923, Aug. 197. What is solemn and private baptism? ER. 1918, May 558-559. Latin and English at baptisms, ER. 1928, Aug. 197. Short formula for adult baptisms, ER. 1937, Aug. 175-176; 1932, Jan. 67-68. Adult form of baptism, HPR. 1921, Nov. 183. Omitting saliva ceremony, ER. 1947, Feb. 150. Disinfecting baptismal water, ER. 1926, Sept. 308. What kind of water is used in private baptism? ER. 1926, Sept. 308. Can minister of baptism be a sponsor? HPR. 1934, Dec. 291. Baptismal sponsors must he practical Catholics, ER. 1931, Oct. 412; HPR. 1936, Sept. 1275-1282. BIBLIOGRAPHY 63 Is a sponsor required in adult baptism? ER. 1937, Jan. 87. Questionable baptismal sponsorships, CST. I, 243. Protestant baptismal sponsor, CST. IV, 257 ; V, 102. Proxies for baptismal sponsors, ER. 1929, Apr. 419. Obligations of baptismal sponsors, ER. 1928, Dec. 581-596; 1929, Jan. 124-134; Mar. 276-287. Solemn baptism in hospitals, ER. 1927, Sept. 301-303; 1929, May 512; 1920, Jan. 74-75; Mar. 315-318; 1932, Oct. 411 ; HPR. 1924, May 845; 1928, Nov. 181; 1929, Feb. 534; 1936, Mar. 635. Solemn baptism in private homes, ER. 1928, Sept. 305-307; 1935, Sept. 300; HPR. 1934, Dec. 291. Must pastor record baptism of his subject baptized outside his parish? HPR. 1940, Oct. 86. Recording illegitimates, ER. 1943, Dec. 456-458. Record of baptisms performed in hospitals, HPR. 1927, May 870. Recording baptisms of non-Catholic infants, ER. 1945, Aug. 148. How to prove baptism other than by certificate, ER. 1935, Sept. 306. Confirmation Books of Special Reference Coleman, John J., “The Minister of Confirmation,” C. U. Press, 1941. Articles and Consultations Confirmation not to be conferred in Latin Church generally before the 7th year of age, saving a few exceptions. Jeta, 1932, 271 ; ER. 1932, Nov. 513-515; 1938, Feb. 160-164; HPR. 1923, Aug. 1190; Jurist, 1927, Jan. 70. Must middle aged man seek confirmation? CST. V, 110. Sponsors at confirmations, ER. 1918, Apr. 435. Priest, Sisters, parents, as confirmation sponsors, CST. V, 113. One sponsor for all confirmands allowed? ER. 1918, Apr. 435. Text of Decree on confirmation faculties of pastors, together with translation and commentary, ER. 1947, Apr. 241-265. 64 BIBLIOGRAPHY Holy Mass Books of Special Reference Manuals of Moral Theology. McGarvey, Thomas J., “Bination,” C. U. Press, 1946. Henry, Joseph A., “The Mass and Holy Comtnunion: InterRitual Law,” C. U. Press, 1946. Keller, Charles F., “Mass Stipends,” St. Louis: Herder, 1936. Miller, Newton T., “Founded Masses According to the Code of Canon Law,” C. U. Press, 1926. Articles and Consultations The chaplain, not the religious superior, examines the celebret, H PR. 1933, Oct. 73. Three Masses allowed to same celebrant in some countries on Sunday, HPR. 1940, Oct. 82. Bination and visiting priest, HPR. 1929, Dec. 295; 1941, Mar. 639; ER. 1919, Sept. 303; 1940, Apr. 348-349. Bination a privilege or duty? Jurist, 1942, Apr. 145-154. Binating in hospital chapel, ER. 1942, July 71. How much attendance justifies bination? ÉR. 1945, June 467. Doubts sinful state, and if he broke fast before saving Mass, CST. Ill, 240; IV. 7. Confession of celebrant before Mass, CST. II, 135. Can contrition replace confession in this case ante sacrum? CST. IV, 244; 281. Deficienti copia confessant, HPR. 1928, Feb. 535. Celebrating and binating after breaking fast, CST. I, 268; ER. 1934, Feb. 180-182. Fasting priest may not consume particles extra Missam, ER. 1932, Oct. 419. Stomach pump before and after communion. CST, III, 138; V, 131. Cfr. additional material on the fast in following section under Communion. Mass for a deceased Protestant, ER. 1919, Apr. 456. Mass cards for deceased non-Catholics, ER. 1937, Jan. 88. Applying Mass for deceased unbaptized child—for deceased Protestant—for sick Jewess—for Catholic suicide—for deceased excommunicated priest, CST. V, 145. A suicide’s will provides for Masses in his behalf, CST. Ill, 182. Saying Mass for a suicide, ER. 1934, June, 629; CST. V, 145. BIBLIOGRAPHY 65 Stipends from persons in debt, ER. 1925, July SO. .Mass without a server, ER. 1919, May 550; July 100; Sept. 318-323; 1923, .Mar. 294-296; 1928, Apr. 403-413; 1934, Sept. 298-301; HPR. 1921, Dec. 292; 1922, Nov. 158-161; 1932, June 969. Mass under one species, CST. Ill, 76: HPR. 1923, Nov. 183. How much wine is required for Mass, and docs non-alcoholic wine suffice? CST. V, 115. Alcoholic content of Mass wine, ER. 1918. Mar. 324. Before pouring wine into chalice priest observes it has been diluted with water, CST. Ill, 244. No water at hand, but says Mass, CST. IV. 226. Finishes Mass for fainting celebrant, CST. V, 142. Saying Mass with bandaged finger, CST. Ill, 143. At solitary .Mass should last blessing be given? HPR. 1935, Nov. 183. The oratio imperata, ER. 1937, Mar. 306; HPR. 1936, Sept. 1306; 1940, Apr. 781; Dec. 322. Congregation praying aloud at Mass. HPR. 1939, May 862. Prayers after low Mass, HPR. 1921, July 946; 1933, Apr. 736; 1940, Feb. 520. Meaning of conventual Mass, ER. 1933, Jan. 75. Meaning of .Missa privata, ER. 1926, May .531; 1933. Dec. 642; 1934, Mar. 304-307; 1939, Oct. 365; 1940, Sept. 287; HPR. 1924, Apr. 743; 1935, Aug. 1187. When the ordo errs, HPR. 1922, Feb. 536; July 1125. Mutilated Missa cantata, ER. 1927, Feb. 205. Omitting the passion on Palm Sunday, ER. 1929, Mar. 315. Christmas midnight Mass, ER. 1919, Dec. 710-712; 1932, Dec. 628-633; HPR. 1924, Nov. 175. Christmas midnight low Mass, HPR. 1941, Feb. 534. Christmas midnight Mass in chapels of case, ER. 1920, Feb. 220; HPR. 1938, Jan. 416-418; Apr. 738. Private Mass in chapels of case on Holy Thursday, ER. 1920, Mar. 312; 1921, Mar. 279. Low Mass on Holy Saturday and none on Thursday, ER. 1932, Mar. 320. Mass at sea, ER. 1931, Aug. 196. Sunday precept and Mass at sea, ER. 1939, July 72. How to apply for permission to say Mass at sea, ER. 1924, Jan. 99; 1927, Feb. 199. Who can satisfy Mass obligation at portable altar? ER. 1939, Jan. 69. BIBLIOGRAPHY Can Mass be said in sacristy and conununion distributed? ER. 1930, Mar. 309. Mass in sacristy or school, ER. 1931, Feb. 198; 1932, Mar. 313. Mass stipends—the law, ER. 1932, July 32-41. Purgatorial societies and Mass fees, ER. 1921, Jan. 79; Sept. 307; 1945, Mar. 229; IIPR. 1923, May 859. Stipends for binated Masses, ER. 1919, May 571-572. Must stipend for binated Mass be restored? HPR. 1929, July 1103. Bunching intentions on All Souls’ Day, ER. 1919, Feb. 189; 1923, Oct. 423; 1933, Nov. 538. Bunching low Masses into high Masses, ER. 1932, Sept. 311313; 1946, Aug. 141-145; 1943, Oct. 297-298. Interpreting bequests for Masses, ER. 1919, Tune 703-704; 1920, Apr. 471-472; Sept. 294-296; 1924, Oct. 420; 1931, May 521; 1938, Feb. 178; HPR. 1930, Sept. 1325; 1933, Aug. 1194; 1937, Mar. 626-628. Undetermined number of Mass stipends, ER. 1927, May 542; Jurist, 1942, Oct. 375-379. Gregorian Masses, CST. V, 151; HPR. 1939, July 1109-1112; 1940, Feb. 518; ER. 1946, June 462. Two dollars for dated low Masses, ER. 1929, Jan. 87-88. Increased stipend for late funeral and wedding Masses. ER. 1936, May 529-531. Keeping Mass intentions over a year, HPR. 1935, Aug. 1191. Takes two years to satisfy testator’s Mass intentions, CST. IV, 199. Excessive number of stipends, ER. 1932, Feb. 185-189. Responsibility for Masses lost by transferee in business venture, CST. I, 228. Sending Mass stipends away, CST. V, 156. Stipends can be sent outside of diocese without bishop's per­ mission, HPR. 1921, Oct. 61. Transferring only part of stipend, ER. 1920, Mar. 335-338. Massstiocnd belongs to celebrant, HPR. 1928, Nov. 186; 1929, Aug. 1229; Oct. 66. High Mass stipend per se belongs to celebrant, ER. 1938, Aug. 177-178. High Mass stipend and the assistant, ER. 1939, Apr. 349-355. Mass stipends between pastors and assistants, ER. 1938, Jan. 69-72. What stipend for priest who savs funeral Mass for pastor? HPR. 1921, Aug. 1052. BIBLIOGRAPHY 67 Some exceptions to entire stipend to celebrant, HPR. 1921, Sept. 1144. Assistant says Missa pro populo for pastor, HPR. 1930, Aug. 1211Can a stipend be divided by the pastor? HPR. 1928, Oct. 75. Some doubts on Mass stipends, ER. 1935, Jan. 78. Reducing Mass obligations because of lowered interest rate, CST. V, 154. Holy Communion Books of Special Reference Manuals of Moral Theology. Anglin, Thomas F., “The Eucharistic Fast,” C. U. Press, 1941. Clinton, Connell, “The Pascal Precept,” C. U. Press, 1932. Henry, Joseph A., “The Mass and Holy Communion: Inter­ Ritual Law,” C. U. Press, 1926. Articles and Consultations Giving large host to communicant after Benediction, ER. 1934, Apr. 433; 1936, Feb. 191 ; IIPR. 1922, May 902. How to give communion to the sick in hospitals and other institutions, ER. 1924, June 639-640; 1927, Feb. 209; 1929, Sept. 316; 1935, Jan. 76-78; 1937, Dec. 588; 1938, Apr. 478; HPR. 1924, June 970; 1929, June 1000; 1941, July, 1037. Ceremonies in giving communion to sick in their homes, ER. 1941, Feb. 168-169. Cassock and surplice on sick calls, ER. 1940, b eb. 163. Non-renewal of Species for three weeks, ER. 1927, Nov. 529. Communion before operation, HPR. 1929, Jan. 409; 1939, Apr. 735; ER. 1919, Dec. 713. Throat trouble and communion fast, HPR. 1940, Dec. 320. Viaticum to person with cancerous throat, CST. IV, 128. Troublesome false teeth and communion, CST. Ill, 165. Communion cloth obligatory with paten? HPR. 1938, Apr. 743: 1940, July 1135; ER. 1936, Oct. 417-418; 1940, Mar. 275; July 90; 1946, Sept. 225; 1947, Mar. 230. Sufficient disposition for child’s first communion, ER. 1920, Jan. 72-73. Communion to feeble minded persons, HPR. 1940. May 896. Non-fasting communicants, ER. 1919, Nov. 522-532. 68 BIBLIOGRAPHY Salt at baptism does not break fast, ER. 1918, Mar. 322. Does dissolved hard candy break communion fast? or lipstick? ER. 1944, Nov. 394. Did he break fast? HPR. 1927, May 871. Poloris plaster for toothache, and communion fast, ER. 1945, Feb. 140. Fast and consuming Benediction host, ER. 1923, Oct. 436. Eucharistic fast and the stomach pump, ER. 1925, Sept. 316319. Nose spray, stomach pump, and the Eucharistic fast, 11 PR. 1925, June 976-978. Eucharistic fast and medicated tablets, ER. 1936, Dec. 634637; 1946, Mar. 228; HPR. 1941, Nov. 188. A case of communion without fast, HPR. 1923, Nov. 169-171. Gets headache when observing Eucharistic fast, HPR. 1924, Feb. 512: Able to attend Mass but not to keep fast, HPR. 1934, June 973. Breaking fast before first communion, ER. 1932, June 642; Aug. 187. Can sick receive communion daily without fasting? ER. 1927, Feb. 209; cfr. also delegated faculties listed at end of manual. Viaticum and protracted illness, ER. 1931, June 632. Requesting dispensation to communicate daily without fasting, ER. 1921, Aug. 186; 1928, Nov. 537-538; Dec. 648. Recent relaxation in law of Eucharistic fast, ER. 1923, Aug. 183-189. Fast and daylight-saving time, ER. 1918, May 565-567. Origin of extended Easter duty season, ER. 1924, July 91. Can first communion be postponed beyond Easter season? ER. 1940, June 536. No Code penalties for missing Easter dutv, ER. 1932, Nov. 515-521. Gave communion on Holy Saturday two hours before Mass, CST. IV, 238. Communion to sick on Holy Thursday, ER. 1940, Feb. 168. Can communion be taken to the homes of non-sick? HPR. 1929, Mar. 649. BIBLIOGRAPHY 69 Confession and Indulgences Books of Special Reference Manuals of Moral Theology. Simon, J., “Faculties of Pastors and Confessors for Absolution and Dispensation,” New York: Wagner, 1922. Kelly, James P., “The Jurisdiction of the Simple Confessor,” New York: Benzinger, 1928. Dargin, Edward V., “Reserved Cases According to the Code of Canon Law,” C. U. Press, 1924. Linahen, Leo J., “De Absolutione Complicis in Peccato Turpi,” C. U. Press, 1942. Hagedorn, Francis E., “General Legislation on Indulgences,” C. U. Press, 1924. Preces et Pia Opera.......... indulgentiis ditata.................. Vatican Press, 1938. Articles and Consultations Can priests confess to one another outside of diocese? ER. 1942, Apr. 292-294. How often must priest avail himself for confessions of faith­ ful, ER. 1923, Aug. 194-196. His confession faculties have inadvertantly expired, CST. V, 181. A case of supplied confession faculties, CST. II, 217. Is chaplain’s permission necessary to hear patient’s confession ? ER. 1931, Nov. 526. Absolution repeatedly to the unconscious and the dying, ER. 1925, Dec. 630; 1935, Apr. 422; HPR. 1928, Feb. 539. Absolution of fallen-away Catholic in danger of death, HPR. 1922, May 891-892. Absolved in globo before engaging in battle, CST. V, 218. What is meant by gravis, diuturna et salutaris poenitentia? CST. IV, 158. False accusation of solicitation, ER. 1918, Nov. 458-463; 1919, Jan. 61-69. Can Ordinary reserve ratione peccati a sin reserved by Code ratione censurae? ER 1931, Feb. 190-192. Episcopal reservations during Easter season, HPR. 1920, Apr. 643. A missionary meets various reserved cases, CST. V, 183. Absolving penitent who confesses sin of solicitation, HPR. 1927, July 1227. 70 BIBLIOGRAPHY Habitually hears confessions in strange tongue, CST. IV, 194. Confessing women outside the confessional, ER. 1934, Feb. 159-161; HPR. 1930, Sept. 1327. Confessing hard of hearing penitents, CST. Ill, 194; HPR. 1930, Sept. 1327. Sale of indulgenced or blessed object, ER. 1926, Aug. 187; 1928, Apr. 429. Can I gain an indulgence on borrowed rosary? HPR. 1935, June 966. Meaning of general absolution and indulgenced blessing, ER. 1937, May 522-529. List of the so-called Apostolic Indulgences, HPR. 1928, Sept. 1329. Authorization to erect stations, ER. 1938, Feb. 175; HPR. 1935, Feb. 515. How to say the stations, HPR. 1937, July 961. No specified prayers required for station indulgences, ER. 1933, Jan. 73-74; HPR. 1922, June 1013. Moving stations temporarily, HPR. 1931, Oct. 68. Moving stations to another chapel, HPR. 1921, Apr. 639. How stations lose their blessings, HPR. 1941, Feb. 532; 1923, May 860. The 1925 Jubilee year, ER. 1924, Nov. 520-522; Dec. 561572; 1925, Ian. 11-22; Feb. 113-125; Mar. 266-275. Extension of 1925 Jubilee, ER. 1926, May 449-460; June 628. Extreme Unction Books of Special Reference Manuals of Moral and Pastoral Theology. Kilkcr, Adrian J., “Extreme Unction,” C. U. Press, 1926. Articles and Consultations Is old age sickness for Extreme Unction? ER. 1933, Jan. 57. Extreme Unction before operation, ER. 1920, Feb. 221; Apr. 454-457. Repeating Extreme Unction, ER. 1932, Jan. 41-54; June 627632; CST. II, 306. Can Apostolic Blessing be given repeatedly to the dying? HPR. 1940, Sept. 1357. Extreme Unction to the unconscious, CST. V. 228. Last sacraments to unknown victims of accidents, HPR. 1937, Dec. 308; 1939, June, 964-967. BIBLIOGRAPHY 71 Accidents and Extreme Unction, HPR. 1922, June 1013. Surplice and stole on sick calls, HPR. 1937, July 966. Commendatio animae can be said in English, HPR. 1925, July 990. How to inform patient of approaching death, ER. 1932, June 637-639. Holy Orders Books of Special Reference Mocder, John M., “The Proper Bishop for Ordination and Dimissdrial Letters,” C. U. Press, 1935. Gannon, John M., “The Interstices Required for the Promo­ tion to Orders,” C. U. Press, 1944. Hickey, John J., “Irregularities and Simple Impediments in the New Code of Canon Law,” C. U. Press, 1920. Vogelpohl, Henry J., “The Simple Impediments to Holy Orders,” C. U. Press, 1946. Gallagher, Thomas R., “The Examination of the Qualities of the Ordinand,” C. U. Press, 1944. Articles and Consultations Episcopus proprius ordinationis, ER. 1934, Apr. 352-365. Domicile to determine ordaining bishop, ER. 1920, Mar. 341-344. Proper bishop of ordinand who was incardinated by reason of first tonsure into none-home diocese, HPR. 1937, Feb. 522. Candidate for orders without cniscopus proprius, HPR. 1921, Oct 62. Incardination question, HPR. 1923, June 969. Irregularity from defective sight, ER. 1927, Dec. 646-649. Throat malady and irregularity ex defectu, IIPR. 1928, Apr. 761-765. Slight epilepsy an impediment to orders? CST. HI, 141. Can a seminarian or religious act as subdeacon, CST, II, 29; HPR. 1933, Jan. 403. Layman acting as subdeacon, HPR. 1922, July 1125. Marriage Reading material on this subject is found in the body of the Manual itself in the chapter on Marriage. 72 BIBLIOGRAPHY Sacramentals Books of Special Reference Manuals of Moral Theology after De Sacramentis in Genere. Paschang, John L., “The Sacramentals According to the Code of Canon Law,” C. U. Press, 1925. Articles and Consultations Who blesses sacred vestments? HPR. 1924, Mar. 622. Is it necessary to bless liturgical candles? ER. 1942, Nov. 393. Can palms be blessed in hospital chapels? ER. 1933, July 82. Ashes imposed at home or on following Sunday, ER. 1940, Feb. 168. Are holy water and specified prayers required for the validity of sacramentals? HPR. 1926, Apr. 728; 1935, Aug. 1186; 1937, Dec. 304; ER. 1942, Oct. 312. Protestants and sacramentals, ER. 1930, Mar. 315; 1931, July 39-47. Taking blessed ashes home, ER. 1928, Sept. 305. Sale of sacred objects, HPR. 1928, Mar. 642. Churching an illegitimate mother, CST. I. 11. Cfr. also material under indulgences. Sacred Places Books of Special Reference Coronata, Matthaeus a., “De Locis et Temporibus Sacris,” Turin: Marietti, 1922. Ziolkowski, Thaddcus S., “The Consecration and Blessing of Churches,” C. U. Press, 1943. Power, Cornelius M., “The Blessing of Cemeteries,” C. U. Press, 1943. Gulczynski, John T., “The Desecration and Violation of Churches,” C. U. Press, 1942. Feldhaus, Aloysius H., “Oratories,” C. U. Press, 1927. Bliley, Nicholas M., “Altars According to the Code of Canon Law,” C. U. Press, 1927. BIBLIOGRAPHY Articles and 7J Consultations Blessed churches and titular feasts, ER. 1929, Mar. 308-310. Blessed churches and anniversary of dedication, ER. 1931, Feb. 198; 1934, Mar. 317. Titular feasts of chapels of ease, ER. 1939, Mar. 272. Can a low Mass be said in a parish church on Holy Thursday if no services are held the following two days? CST. I, 17. Holy Week services in small churches, ER. 1931, Apr. 404-405. Status of chapels of ease, HPR. 1926, Nov. 187. Flags in the sanctuary, ER. 1918, Oct. 421; Dec. 627-6281 1926, Sept. 307. Dancing in church halls, HPR. 1927, Oct. 72. Sleeping rooms above chapel, ER. 1946, June, 456. Minor basilicas, ER. 1928, Jan. 1-19. Collections at church door, ÈR. 1928, Dec. 647; Jurist, 1943, Jan. 152. Holy Week services in chanels, HPR. 1923, May 857-859; ER. 1935, Mar. 300; 1939, Feb. 165. Reconsecrating portable altars, ER. 1044, Nov. 301. Fractured altar stone, ER. 1918, June 683-684. Did the altar lose its consecration in these cases? CST. II, 121 ; III, 250, 272. Privileged altars, cfr. “Indulgences.” Ecclesiastical Burial Books of Special Reference Manuals of Moral Theology under De Sepultura Ecclesiastica found after Censures, or under Precepts of the Church. O'Reilly, John A., “Ecclesiastical Sepulture in the New Code of Canon Lawt” C. U. Press, 1923. Kerin, Charles A., “The Privation of Christian Burial,” C. U. Press, 1941. Articles and Consultations The Code law on Christian burial, ER. 1922, July 12-26. Burial of a fetus, ER. 1939, Mar. 273. Burial of amputated limbs, HPR. 1933, Dec. 291 ; 1939, Aug. 1219; ER. 1933, Dec. 638. 74 BIBLIOGRAPHY Cremation ban theory and application, CST. II, 33. A case of cremation in the last will ignored by heirs, ER. 1926, Feb. 183. Burial in non-Catholic cemetery, ER. 1919, Jan. 82-83; 1924, Oct. 419; 1930, Nov. 535; 1934, Sept. 302; HPR. 1936, Oct. 7981; 1938, July, 1070. Blessing graves in a communitv cemetery, ER. 1937, June 626627; HPR. 1933, Nov. 185. Desecration of cemeteries, HPR. 1924, Nov. 171; ER. 1933, Dec. 638. Burial of non-Catholics in Catholic cemetery, ER. 1922, July 19; 1932 Feb. 192-195; 1936, Oct. 79. Rubrics of funerals, HPR. 1935, Jan. 409. Proper prayers and hymns in church at funerals, ER. 1941, Feb. 169-170; July 51. English prayers at funerals, HPR. 1932, July 1076. Funerals of children, ER. 1925, July 82. Church burial for boy 5 and another 9 years old, CST. II, 294. Funeral during Forty Hours, ER. 1933, Jan. 77; Feb. 194; HPR. 1933, Feb. 522. Funeral during last three days of Holy Week, ER. 1932, Mar. 318. May any funeral be conducted in hospital chapels? ER. 1933, July 81. Funeral of non-parishioners who have pews, HPR. 1926, Sept. 1303. Parochial rights and the funeral Mass, ER. 1919, Jan. 80-82. Rights of proper pastor to funeral fees, HPR. 1930, Nov. 182184. Sale of cemetery lots, ER. 1928, Apr. 430-432. Christian burial and negligent Catholics, ER. 1926, Dec. 654657; 1036, Aug. 189-194; HPR. 1921, June 841; 1930, May 867; 1941. Jan. 434; 1942, July 951. Burial of notorious criminals, HPR. 1931, Apr. 750-751. Burial of suicides, CST. HI, 212. Burial of a mason, CST. IV, 71. Some practical questions concerning Christian burial, ER. 1940, July 1-16. Dying convert wants Protestant funeral, HPR. 1934, Dec. 290. Priests at non-Catholic funerals, HPR. 1938, Apr. 759; 1941, June 940. BIBLIOGRAPHY 75 Sunday Mass—Fast and Abstinence Books of Special Reference Manuals of Moral Theology under De Praeceptis Ecclesiae, and partly under De Tertio Decalogi Praecepto. Guiniven, John J., “The Precept of Hearing Mass,” C. U. Press, 1942. Coronata, Matthaeus a., “De Locis et Temporibus Sacris,” Turin: Marietti, 1922. Articles and Consultations The law of abstinence explained, ER. 1939, Feb. 109-131. The Code law on fast and abstinence, ER. 1918, Jan. 56-63; Feb. 201-203; 208-209. How far can pastors dispense from fast and abstinence? ER. 1932, Apr. 426-427. A pastor dispenses from abstinence, ER. 1933, Sept. 286-288. Travel in itself does not exempt from fast, ER. 1932, June 634. Old age alone docs not exempt from abstinence, ER. 1937, Dec. 594; 1938, Feb. 174; HPR. 1938, Mar. 627. On days of fasts only, can meat be eaten repeatedly by persons exempt from fast? HPR. 1923, Dec. 284; 1927, June 1100. Meaning of “condiment or seasoning of meat,” HPR. 1921, May 746. Cooking meat with food on Fridays, HPR. 1928, Apr. 754. Liquidum non frangit jejunium, ER. 1939, Mar. 220-224. Pork and beans and abstinence, ER. 1933, Jan. 67. Frog legs and abstinence, ER. 1919, Dec. 715. Gelatine and abstinence, ER. 1929, Aug. 188. Jello and abstinence, ER. 1918, Apr. 434. Oleomargarine and abstinence, ER. 1918, 434. Sea fowl and lenten food, HPR. 1933, June 973. White meats and abstinence, ER. 1928, June 639-640. Patronal feast and Friday abstinence, ER. 1921, Sept. 303; 1919. Feb. 188; 1926, Apr. 408. The workingmen’s induit, ER. 1929, Feb. 187-190; 1930, Mar. 295-301; 1936. fan. 66-69; 1942, Mar. 125-131; HPR. 1925, Dec. 292; 1928, Nov. 188; 1932, Dec. 295; 1935, June 966; 1940, June 1000. Dispensation from fast and abstinence on civil holidays, ER. 1932, Jan. 89-90; Feb. 190. BIBLIOGRAPHY 76 The Bulla Cruciata as applicable to the U. S., ER. 1925, Jan. 87-88. Wednesday of Holy Week is not a day of abstinence, ER. 1940, Jan. 64-66; IIPR. 1934, July 1083. Some moral reasons exempting from fast, ER. 1930, Nov. 539-541. Priestly fasts on ember Saturdays, ER. 1928, Aug. 201. Catholics offering meat'to Protestants on Fridays. HPR. 1921, Jan. 320. Divine Worship Books of Special Reference Manuals of Pastoral Theologj· and Manuals of Sacred Liturgy. Cavanaugh, William T., “The Reservation of the Blessed Sacrament," C. U. Press, 1927. Doolev, Eugene A., “Church Law on Sacred Relics," C. U. Press, 1931. Articles and Consultations Acting as witness at non-Catholic church wedding, CST. I, 145; ER. 1931, Sept. 312. Priests at non-Catholic funerals, HPR. 1938, Apr. 759; 1941, June 940. Priest assisting at marriage of non-Catholics, ER. 1934, Jan. 84; HPR. 1928, June 989. Ritual prayers in the vernacular, ER. 1932, Oct. 416. Carrying lunula to another church for Benediction, ER. 1919, July 96; 1934, Jan. 87; HPR. 1939, Dec. 326. Carrying Blessed Sacrament back to home parish church after Benediction, ER.‘ 1928, May 521-523; HPR. 1924, Feb. 511; May 852. Can consecrated species be carried to convent chapel weekly to evade weekly Mass? ER. 1928, Oct. 412-414; Dec. 649. Who is responsible for custody of Blessed Sacrament in chapels? HPR. 1939, June 967. Custody of the tabernacle key in lav communities. ER. 1938, Oct. 372. Kerosene oil, electric light, and sanctuary lamp, ER. 1920, Feb. 230; Apr. 457-459; Aug. 180-182; HPR. 1922, Aug. 1242; 1923, May 861; 1929, Mar. 647. What is solemn or public Benediction? ER. 1929, Mar. 317. Ordinary’s permission for Benediction, ER. 1935, Jan. 79-81. Required number of attendants at Benediction, ER. 1932, BIBLIOGRAPHY 77 Apr. 431 ; 1940, July 90; 1945, Nov. 390; HPR. 1924. Sept. 1283. Benediction twice a day, ER. 1931, Nov. 530; 1934, July 85; HPR. 1925, Dec. 289; 1933, Dee. 295. Benediction twice on Sunday, ER. 1938, Apr. 373. Ceremonies at private Benediction, ER. 1937, Nov. 497; 1940, Mar. 271. Funeral during Forty Hours, HPR. 1933, Feb. 522. Authentication of relics, ER. 1923, Sept. 299. Traffic in relics, ER. 1923, Sept. 299. Must oil stocks be blessed? HPR. 1926, Sept. 1303. Do replatcd chalices need reconsecration? HPR. 1924, Sept. 1282'. Sister sacristans, ER. 1926, Jan. 82-84. Lay sacristans and sacred vessels, HPR. 1921, Feb. 430; 1924, Jan. 411 ; June 973. Who washes church linens? CST. II, 96. May women wash soiled purificators ? HPR. 1931, Dec. 294. Teaching Authority of the Church Books of Special Reference Manuals of Moral Theology under De Prohibitione Librorum, or under De Praeceptis Ecclesiae. Manuals of Pastoral Theologj- under Sacred Preaching, Cate­ chetical Instructions, etc. Kelleher, Stephen I., “Discussions with Non-Catholics.” C. U. Press, 1943. Jansen, Raymond J., “Canonical Provisions for Catechetical Instructions,” C. (J. Press. 1937. Cox, Joseph G., “The Administration of Seminaries,” C. U. Press, 1931. Heck, Theodore, “The Curriculum of the Major Seminary in Relation to Contemporary Conditions,” C. U. Press. 1935. Boffa, Conrad H.. “Canonical Provisions for Catholic Schools, C. U. Press, 1939. Pernicone, Joseph M., “The Ecclesiastical Prohibition of Books,” C. U. Press, 1932. “Index Librorum Prohibitorum,” Vatican Press, 1945. Canavan, Walter J., “The Profession of Faith,” C. U. Press, 1942. Articles and Consultations Priest preaching outside of his diocese, HPR. 1930, Apr. 752-753. BIBLIOGRAPHY 78 Attendance at non-Catholic schools, HPR. 1930, Mar. 624626. What does “editis” of c. 1384, §2 mean? HPR. 1936, June 970. Episcopal imprimatur for holy pictures and indulgcnced pray­ ers, ER. 1932, Jan. 81-82; July 185; 1933, Aug. 190-192. Practical approach to the Index of Forbidden Books, ER. 1923, Feb. 191 ; Apr. 417. Benefices and Institutions Books of Special Reference Golden, Henry F., “Parochial Benefices in the New Code," C. U. Press, 1921. Connolly, Nicholas P., “The Canonical Erection of Parishes,” C. U. Press,' 1938. Mundy, Thomas M., “The Union of Parishes,” C. U. Press, 1944. Gass, Sylvester F., “Ecclesiastical Pensions,” C. U. Press, 1942. Haydt, John J., “Reserved Benefices,” C. U. Press, 1942. Godfrey, John A., “The Right of Patronage According to the Code of Canon Law,” C. U. Press, 1924. Articles and Consultations Assistant pastorate a benefice? ER. 1927, July 74-79; Sept. 306-312. The congrua dos required for a new parish, ER. 1919, Apr. 451-452. Must a parish have a church? HPR. 1929, Mar. 645. Dividing a parish, IIPR. 1926, Oct. 68. Cfr. also the material under Pastors. Temporal Goods of the Church Books of Special Reference Manuals of Pastoral Theology under Bookkeeping, etc. Brown, Mr. Brendan F., “The Canonical Juristic Personality with Special Reference to Its Status in the United States of Amer­ ica,” C. U. Press, 1927. BIBLIOGRAPHY 79 Goodwine, John “The Right of the Church to Acquire Prop­ erty,” C. U. Press, 1941. Dohcny, William J., “Church Property: Modes of Acquisi­ tion,” C. U. Press, 1927. Bartlett, Chester J., “The Tenure of Church Property in the United States of America,” C. U. Press, 1926. Kremer, Michael N., “Church Support in the United States,” C. U. Press, 1930. Hannan, Jerome D., “The Canon Law on Wills,” Philadelphia: Dolphin Press, 1935. Dohcny, William J., “Practical Problems in Church Finance,” Milwaukee: Bruce, 1941. Martin, Thomas O., “Adverse Possession, Prescription and Limitation of Actions: The Canonical Praescriptio," C. U. Press, 1944. Cornyns, Joseph J., “Papal and Episcopal Administration of Church Property,” C. U. Press, 1942. Cleary, Joseph F., “Canonical Limitations on the Alienation of Church Property,” C. U. Press, 1936. Stenger, Joseph B., “The Mortgaging of Church Property,” C. U. Press, 1942. Heston, Edward L.» “The Alienation of Church Property in the United States,” C. U. Press, 1941. Miller, Newton T., “Founded Masses According to the Code of Canon Law,” C. U. Press, 1926. Articles and Consultations Episcopal assessments on parishes, HPR. 1922, Apr. 794-796. Non-support of Church and absolution, ER. 1923, July 83. Collections at hospital Mass, ER. 1932, June 633. Bishop is executor of charitable bequests, HPR. 1927, July 1222. Diverting legacy to purpose other than determined by de­ ceased, HPR. 1928, Mar. 641. Executor of will refuses to donate chalice to shrine as desired by testator, CST. IV, 93. Alienation of church property, ER. 1940, Feb. 167. Mortgages, debts, leases, non-alicnation investments, church finance problems, Jurist, 1941, Apr. 97-107. Sale of sacred objects, HPR. 1928, Mar. 642. Is civil law on contracts binding in conscience? CST. II, 65, 86. BIBLIOGRAPHY so Trials in General Books of Special Reference Dugan, Henry F. “The Judiciary Department of the Diocesan Curia,” C. U. Press, 1925. Vaughan, William E., “Constitutions for Diocesan Courts,” C. U. Press, 1944. Burke, Thomas J., “Competence in Ecclesiastical Tribunals,” C. U. Press, 1922. Lvons, Avitus E., “The Collegiate Tribunal of First Instance,” C. U. Press, 1932. Glyn, John C., “The Promoter of Justice,” C. U. Press, 1936. Dolan, John L., “The Defensor Vinculi,” C. U. Press, 1934. Krol, John T., “The Defendant in Ecclesiastical Trials,” C. U. Press, 1942. Hogan, James J., “Judicial Ad vocales and Procurators,” C. U. Press, 1941. Coyle, Paul R., “Judicial Exceptions,” C. U. Press, 1944. Martin, Thomas O., "Adverse Possession, Prescription and Limitation of Actions: The Canonical Praescriptio,” C. U. Press, 1944. Kealv, John J., “The Introductory Libellus in Church Court Procedure,” C. U. Press, 1937. Moriarty, Eugene J., “Oaths in Ecclesiastical Courts,” C. U. Press, 1937. ' Willett, Robert A., “The Probative Value of Documents in Ecclesiastical Trials,” C. U. Press, 1942. Lemieux, Delise M., “The Sentence in Ecclesiastical Proce­ dure,” C. U. Press, 1934. Connolly, Thomas A., “Appeals,” C. U. Press. 1932. Feeney, Thomas J., “Restitutio in Integrum,” C. U. Press, 1941. Marriage Trials and Processes Books of Special Reference Labouré-Byrnes, “Procedure in Diocesan Matrimonial Courts of First Instance,” New York: Benzinger Bros., 1947. Doheny, William J., “Canonical Procedure in Matrimonial Cases (Formal Procedure),” Milwaukee: Bruce, 1938. BIBLIOGRAPHY SI Doheny, William J., “Canonical Procedure in Matrimonial Cases (Informal Procedure),” Milwaukee: Bruce, 1943. Bouscaren, T. L., ‘‘The Canon Law Digest” (section on sum­ marized Rota marriage decisions), Milwaukee: Bruce, 1942. Goldsmith, J. W., “The Competence of Church and State over Marriages—Disputed Points,” C. C. Press, 1944. Kay, Thomas H., “Competence in Matrimonial Procedure,” C. U. Press, 1929. Wanenmacher, Francis, “Canonical Evidence in Marriage Cases,” Philadelphia: Dolphin Press, 1935. Whalen, Donald W., “The Value of Testimonial Evidence in Matrimonial Procedure,” C. U. Press, 1935. Manning, John J., “Presumption of Law in Matrimonial Procedure,” C. U. Press, 1935. Kennedy, Edwin J., “The Special Matrimonial Process in Cases of Evident Nullity,” C. U. Press, 1935. Marx, Adolph, “The Declaration of Nullity of Marriages Contracted Outside the Church,” C. U. Press, 1943. Ramstcin, Matthew, “The Pastor and Marriage Cases,” New York: Benzinger, 1945. Cfr. also the material above under Trials in General, and the reference material in the body of this Manual in the chapter on Marriage. Articles and Consultations Rota costs of marriage annulments, ER. 1928, Dec. 643. Submitting a ratum non-consummatum case to the chancery, HPR. 1928, Jan. 415. A practical case involving c. 1971., ER. 1929, June 635-639. Non-Catholic plaintiff and the marriage court, ER. 1931. 308310; 1932, Jan. 68-73; 1934, July 75-84; Jurist, 1944, Oct. 623-626; 1946, July 378-400. Procedure when a party is debarred from invoking the aid of the matrimonial court, HPR. 1929, Sept. 1326. What if a non-Catholic, without intending conversion, petitions declaration of nullity of former marriage to marry present Catholic spouse? HPR. 1939, Nov. 169-171. Must the parties be cited under c. 1990? ER. 1934. Oct. 414416. Can. 1990 and the 1936 Instruction, ER. 1938, Mar. 262-270. Can summary trial of c. 1990-1992 be handled outside of court, evidence being gathered by the pastor? Jurist, 1945, July 441447. BIBLIOGRAPHY 82 Summary marriage trials, Jurist, 1944, Jan. 1-53. Slow expediting of marriage cases by curias, ER. 1946, Dec. 458. Why civil divorce should precede ecclesiastical marriage trial, Jurist, 1944, Jan. 160. Beatification and Canonization Books of Special Reference Mackcn, Thomas F., “The Canonisation of Saints,” New York: Benzinger, 1909. Articles and Consultations The beatification and canonization of saints, ER. 1924. June 621-629. Cfr. “The Catholic Encyclopedia” under appropriate captions. Extrajudicial Processes Books of Special Reference Suarez, Emmanual, “De Remotione Parochorum,” Rome, 1931. Connor, Maurice, “The Administrative Removal of Pastors,” C. U. Press, 1937. Galvin, William A., “The Administrative Transfer of Pastors,” C. U. Press, 1946. Meier. Carl A., “Penal Administrative Procedure Against Negligent Pastors,” C. U. Press, 1941. Murphy, Edwin J., “Suspension ex Informata Conscientia," C. I . Press. 1932. McClunn, Justin D., “Administrative Recourse.” C. U. Press. 1946. Articles and Consultations Removal of irremovable pastors, ER. 1935, Nov. 490-503. Can a retired pastor live in the rectory of his former parish? HPR. 1924, Apr. 747. Suspension ex informata conscientia, HPR. 1933, July 1085. BIBLIOGRAPHY Offenses and Penalties Books of Special Reference •Manuals of Moral Theology under De Censuris. Roberti, Franciscus, “De Delictis et Poenis,” Rome: Apolli­ naris, 1938. Ayrinhac-Lydon, “Penal Legislation in the New Code of Canon Law,” New York: Benzinger, 1944. Kelly James P., “The Jurisdiction of the Confessor,” New York: Benzinger, 1928. Swoboda, Innocent R., “Ignorance in Relation to the Imputa* bility of Delicts,” C. U. Press, 1941. McCoy, Alan E., “Force and Fear in Relation to Delictual Imputability and Penal Responsibility,” C. U. Press, 1944. Eltz, Louis A., “Cooperation in Crime,” C. U. Press. 1942. Esswein, .Anthony A., “Extrajudicial Penal Powers of Ecclesi­ astical Superiors,” C. U. Press, 1941. Dargin, Edward V., “Reserved Cases .According to the Code of Canon Law,” C. U. Press, 1924. Stadalnikas, Casimir J., “Reservation of Censures,” C. U. Press, 1944. Kubelbcck, William J., “The S. Penitentiary in its Relation to the Faculties of Ordinaries and Priests,” C. U. Press, 1918. Moriarty, Francis E., The Extraordinary Absolution from Censures,” C. U. Press, 1938. Hyland, Francis E., “Excommunication, its Nature, Histori­ cal Development and Effects.” C. U. Press, 1928. Conran, Edward J., “The Interdict.” C. U. Press. 1930. Rainer, Eligius G., “Suspension of Clerics,” C. U. Press, 1937. Murphy, Edwin J., “Suspension ex Informata Conscientia," C. U. Press. 1932. Findlay, Stephen W., “Canonical Norms Governing the Depo­ sition and Degradation of Clerics,” C. U. Press, 1941. Christ. Joseph J., “Dispensation from Vindicative Penalties,” C. U. Press, 1943. Leech, George L., “A Comparative Study of the Constitution Apnstolicae Sedis and the Codex Juris Canonici," C. U. Press, 1922. MacKenzie, Eric F., “The Delict of Heresy in its Commission, Penalization, Absolution,” C. U. Press, 1932. Goodwine, Joseph G·, “The Reception of Converts,” C. U. Press, 1944. 84 BIBLIOGRAPHY Preuss, Arthur, “A Dictionary of Secret and Other Societies,” St. Louis: Herder, 1924. Quigley, Joseph, “Condemned Societies,” C. U. Press, 1927. Huscr, Roger J., “The Crime of Abortion in Canon Law,” C. U. Press, 1942. Murphy, George L., “Delinquencies and Penalties in the Ad­ ministration and the Reception of the Sacraments.” C. U. Press, 1923. Linahen, Leo J., “De Absolutione Complicis in Peccato Turpi,” C. U. Press, 1942. Smith, Mariner T., “The Penal Law for Religious,” C. U. Press, 1935. Riesner, Albert J., “Apostates and Fugitives from Religious Institutes,” C. U. Press, 1942. McClunn, Justin D., “Administrative Recourse,” C. U. Press, 1946. Articles and Consultations Evolution of ecclesiastical penal legislation, Jurist, 1943, Oct. 602-612. A case of participation in censured offenses, HPR. 1937, Apr. 738-740. A case of ignorance of censure, ER. 1930, Mar. 309-311. Can sacramental absolution always be granted in the case of ignored censures? HPR. 1932, Mar. 631 ; 1931, Feb. 517. The law on reservations, ER. 1922, June 558-586. Are censures reserved when imposed bv bishop’s precept? HPR. 1928, Feb. 535 ; 543-545 ; June 988. Can a pastor communicate to his assistant the faculty to absolve from a censure prior to marriage? HPR. 1931, Feb. 521; 1922, Dec. 291. Can a bishop reserve ratione peccati a delict reserved by law to the Pope ratione censurae? HPR. 1921, July 944; 1931. May 869-870. Public prayers for deceased non-Catholic dignitary, ER. 1945, Sept. 220. How to repair scandal for marrying outside the Church, HPR. 1929, Aug. 1223. BIBLIOGRAPHY 85 Absolving and dispensing powers in periculo mortis, ER. 1931, Sept. 255-277; 1943, May 376-379. What does “durum” mean in c. 2254? HPR. 1924, Aug. 1181 ; 1932, Mar. 632. What is meant by gravis, salutaris et diuturna poenitentia? CST. IV, 158. Suitable penance when absolving from censures, ER. 1944, Apr. 308. Practicability of reserved cases, ER. 1921, Mar. 291-293; May 521-524. Internal and external forum and censures, HPR. 1936, Feb. 527-530. Absolution from censure by phone, ER. 1921, July 77. No oenalty in Code for missing Easter duty, ER. 1932, Nov. 515-521.' Meaning of clerical suspension, HPR. 1940, Dec. 319. Can a deposed cleric ask for diocesan support? CST. IV, 1. Must material heresy converts be absolved from censure? ER. 1924, July 92; 1926, Mar. 315. Procedure in receiving convert into Church, the other spouse remaining non-Catholic, ER. 1926, June 633-634. Absolving a repentant Catholic returned from heresy, HPR. 1932, Mar. 652. Meaning of “speciali modo” of c. 2381, §1, ER. 1936, Apr. 410. Did not know book was forbidden, HPR. 1921, Dec. 277-279. Forbidden books and students, HPR. 1935, Nov. 182. Is marriage before a civil magistrate censured? ER. 1925. Sept. 314-316; 1930, Jan. 72. Two Catholics marry before minister—censured? HPR. 1931, Apr. 752-756. Penalties for marrying outside the Church, ER. 1939, May 462-466. Second marriage before minister, ER. 1934, Feb. 173-175. Second marriage before magistrate—censured? ER. 1921, Jan. 70-72. Docs ignorance excuse from censure for marrying before min­ ister? HPR. 1931, Feb. 517; 1946, Apr. 532. Is Catholic father excommunicated who permits non-Catholic wife to raise children as non-Catholics for the sake of peace? HPR. 1932, Feb. 515. Absolving a Freemason, ER. 1920, June 689; Oct. 416-417; 1928, Oct. 415; HPR. 1922, Aug. 1229-1232; 1931, June 977978. $6 BIBLIOGRAPHY The Order of Odd Fellows, ER. 1923, May 519-520. Societies implicitly condemned, ER. 1930, Feb. 188-190. Y.M.C.A. and Holy Office, HPR. 1921, Dec. 290. Absolving Knights of Pythias and Odd Fellows, HPR. 1922, Oct. 75. What societies or brotherhoods are forbidden? HPR. 1925, Apr. 763. Catholics and the Machabccs, HPR. 1929, Oct. 67. Pvthian convert cannot afford to lose his insurance, CST. II. 38. Censure in case of Order of DeMolay, Rainbow Girls, Daugh­ ters of Rebekah, of Woodmen, HPR. 1933, Jan. 404; Mar. 638. Is it absolutio complicis? HPR. 1922, Jan. 419; 1929, Dec. 293. Directing patient to abortion doctor, ER. 1928, Dec. 650. Effectu sequuto and abortion, ER. 1923, Mar. 300. Fear and abortion censure, HPR. 1922, Feb. 524-526. Absolution from abortion, HPR. 1930, Nov. 184-185. Belated retraction of advise on abortion, HPR. 1932, Oct. 73. Cfr. also the material under “Confession.” βοοί One ON GENERAL NORMS Before proceeding to lay down the legislation particular to ecclesiastical persons, places, processes, delinquencies and penalties, as this is found in Bk. Il, Hi, IV, and \ respectively, the Code in Book I states certain rules, which, because they find application to each and every canon of the remaining Books, are called general norms. It is well that the student master these norms or rules from the beginning for he will have need to refer to them from time to time as fundamental principles of interpretation. Book I is divided into six titles as follows: 1) On ecclesiastical laws; 2) On custom; 3) On the reckoning of time; 4) On rescripts; 5) On privileges; 6) On dispensations. Obviously it docs not suflice to know how the law reads. One must also be able to answer such questions as: 1) has the law been promulgated? and if so, 2) is it a particular or general law? and if a particular law, 3) does it bind me in this locality? 4) how can the content of the law be correctly construed? 5) are there exceptions to this or that law by reason of a contrary custom, a privilege, an induit or a dispensation ? and if so, 6) how is such custom, privilege, etc. to be interpreted? 7) how is the beginning and end of an obliga­ tion or favor to be computed? etc. It will be our purpose in this Book I to answer these and various other questions which are prejudicial to the correct understanding and application of the remaining legislation of the Code. 87 Chapter I ECCLESIASTICAL LAWS The component elements of a body of legislation are called laws {leges). In this sense the individual canons of the Code arc laws, as also arc papal constitutions, provincial and plenary council decrees, diocesan statutes, etc. In this chapter we shall consider: 1) the nature of ecclesiastical laws; 2) their division; 3) their promulgation; 4) their author; 5) their subject; 6) their interpretation; 7) their cessation; 8) the nature of commands other than laws in the strict sense such as precepts, ordinances, instructions, etc. ART. I. Nature of Ecclesiastical Laws An ecclesiastical law is a command promulgated by the com­ petent ecclesiastical superior to his community. 1) It is a command, and in this respect a law differs from a mere counsel; 2) it is a command which has been promulgated, i. e., officially made known to his subjects by authority of the commanding superior; 3) it is a command of the ecclesiastical superior, for com­ mands of the civil ruler are called civil laws; 4) it is a command given to a community, and in this respect a law differs from a precept which is a command given to an individual. These several points will be further elaborated as we proceed. ART. IL Division of Ecclesiastical Laws Ecclesiastical laws may be divided as follows: 1 ) Universal laws and particular laws. The former bind in the universal Church, the latter bind only a certain class of persons, or only in a certain locality. 2) Moral laws, penal laws and mixed laws. A moral law binds directly in conscience so that its violation involves sin of itself. 88 ECCLESIASTICAL LAWS 89 All ecclesiastical laws are moral laws saving the constitutions of certain religious which are purely penal. A penal law likewise binds in conscience but only indirectly, the sin consisting in not submitting to punishment in the event the transgression is discovered and the penalty meted out. A mixed law is one which is both moral and penal at the same time. The latter half of Bk. V contains the penal laws of the code. 3) Territorial laws and personal laws. A territorial law has no force outside the place for which it is intended ; a personal law follows the subject everywhere. Ecclesiastical laws are presumed to be territorial, not personal, unless the contrary is evident. Thus, the constitutions of religious organizations are personal laws. (c. 8, §2). 4) Prospective laws and retroactive laws. Prospective laws look to the future, and the vast majority of all laws are of this nature. Retroactive laws look to the past and affect acts placed prior to the law's enactment. No ecclesiastical law is to be considered retroactive unless it contains an express clause to that effect (c. 10). 5) Invalidating laws and disqualifying laws. The former directly invalidate the act placed in contravention of the law; the latter directly incapacitate the person, as in the case of most marriage impediments. No ecclesiastical law is to be considered invalidating or disqualify­ ing unless the law in question expressly or equivalently states this to be so (c. 11 ). 6) Certain laws and doubtful laws. A law is certain when there is no doubt concerning its existence or meaning; otherwise it is doubtful. Ecclesiastical laws, including those which are invalidating and disqualifying, do not bind in a doubt of law. In a doubt of fact the Ordinary can dispense provided there is question of laws from which the Roman Pontiff is wont to dispense (c. 15). Thus, the Roman Pontiff does not dispense from the impediment of consanguinity when it is doubted if the parties to a marriage are brother and sister. ART. III. The Promulgation of Laws Ecclesiastical laws take effect only after their promulgation (c. 8). The reason is that a law is by its very nature a rule of conduct ; this it cannot be so long as it remains unknown. 90 ECCLESIASTICAL LAWS The promulgation of a law differs from its divulgation among the populace. The official act by which the lawgiver manifests his will to the subjects constitutes promulgation; the transmission of knowledge of the law to the majority of the subjects constitutes its divulgation. The laws of the Holy See arc promulgated by their insertion in the official periodical entitled: Acta Apostolicae Sedis, in some particular case the Pope may determine another mode of promulga­ tion (c. 9). Nothing in the nature of things forbids the lawgiver to decree that his law should become binding from the moment it is promul­ gated, even before it is divulged. But canon 9 allows a vacatio of three months between the promulgation of the laws of the Holy See and their enforcement. The three months are to be computed from the date which appears on the number of the Acta which carries the law. In some particular case a longer or shorter vacatio may be prescribed, but this must be expressly stated (c. 9). Thus, one year’s grace (dormancy) was allowed in the case of the Code before it became law. The decrees of plenary and provincial councils are promulgated in the manner decided upon by the council. The length of their abeyance is also left to the council (c. 291, §1). Episcopal lazus are promulgated in the manner determined by the bishop. Unless the contrary is stated, they begin to bind at once (c. 335, §2). ART. IV. Superiors with Legislative Power The following are the lawgivers in the Church within the limits described : 1) The Roman Pontiff can legislate both for the universal Church and for any part thereof; 2) An ecumenical council’s powers are co-extensive with those of the Pope. 3) The Roman Congregations, acting by authority of the Pope, issue decrees and instructions having the nature of administrative legislation (cfr. p. 97). 4) A plenary council legislates for all the provinces of a nation. 5) A provincial council legislates for all the dioceses of a province. 6) Residential bishops, vicars and prefects Apostolic, abbots ECCLESIASTICAL LAWS 91 and prelates nullius, and permanently appointed administrators Apostolic, legislate for their respective territories. 7) General chapters in exempt clerical religions can make laws for their religious subjects. There arc no other lawgivers in the Church save those here described. ART. V. Persons Subject to Ecclesiastical Laws All are subject to the laws of the Church saving the following: 1. Exempt from all ecclesiastical laws are: a) Unbaptized persons, because only through baptism docs one become a member of the Church of Christ and subject to her jurisdiction (c. 12; 87) ; b) Children under seven years of age, even though they have attained the use of reason. These are not held to purely ecclesiastical laws, and as a consequence it would be permitted, e.g., to serve them meat on a day of abstinence. But where an ecclesiastical law merely restates the divine law, or explains it, children under seven, provided they have the use of reason, are held to such laws, e. g., concerning annual confession and communion (c. 12) ; c) Persons who habitually lack the use of reason (c. 12) ; d) Baptized non-Catholics arc expressly exempt from the Catholic form of marriage and from the impediment of disparity of cult so long as they do not marry Catholics (c. 1099, §2; 1070, §1). In no other place does the Code exempt baptized non-Catholics from its laws. And it may be stated as a general principle that per se these individuals arc subject to the laws of the Church insofar as they have received valid baptism, no mat­ ter in what sect. For through baptism they have become members of the true Church of Christ, i. e., the Catholic Church. But lest material sins be multiplied without necessity, the Church is presumed, according to the common teaching of theologians, to exempt baptized non-Catholics from those laws which refer directly to personal sanctification, e. g., the laws of fast and abstinence, the observance of holydays, etc. But to all other laws which do not fall into this category, i. c., laws which are directed principally to safeguarding public order in the Church, e.g., marriage impediments, penal laws, etc., baptized non­ Catholics are held. Hence, a marriage contracted between two 92 ECCLESIASTICAL LAWS baptized non-Catholics who are first cousins would be invalid. However, mala fide baptized non-Catholics, e.g., apostate Cath­ olics, do not enjoy the exemption here described: nemo ex propria maliflaw commodum reportari debet, i.e., no one should profit by his crime. 2. Exempt from local laws are those persons whom the Code calls peregrini (c. 13, §2;c. 14). Let us call such persons transients. A person is called a transient (peregrinus) in a place where he has neither a domicile nor a quasi-domicile, provided he has a domicile or quasi-domicile elsewhere. For if he has nowhere a domicile or quasi-domicile, he is a vagus (c. 91). We shall see under c. 92 (cfr. p. 127) how a domicile and quasi-domicile arc acquired and lost. Transients are exempt from local laws under the following conditions: 1 ) They are not held to the particular laws of their home territory while they are absent from home. But to this rule there are two exceptions. They will be held to such laws if the violation of the law proves detrimental at home, e. g., the law of residence binding upon beneficed clerics; or if the law is a personal law, e.g. a ban on the clergy against attending theatres even outside of the diocese. 2) They arc not even held to the laws of the territory in which they happen to be staying, unless there is question of a law which aims at preserving public order, e. g., regulations determining preced­ ence in processions ; or unless the law determines the solemnity of an act. Instances of the latter kind of particular law will be difficult to find since the common law very thoroughly covers the subject of the formalities required for the validity of acts, e. g., marriage impediments, judicial procedure, etc., unless we except financial contracts. 3) They arc held to the common law if this is observed in the place of their visit and even though it is not enforced in their home territory, c. g., a visitor from the United States to Italy would be bound to attend Mass on the Feast of the Epiphany. But if the common law is not observed in the place of their visit, they arc exempt also from the common law, e.g., a visitor from Italy to the United States would not be bound to hear Mass on the Feast of the Epiphany. 4) Kagi, i.e., persons who have nowhere a domicile or quasidomicile, are held to all laws, both universal and particular which are in force in the place where they are staying. We may conclude that only they in general must observe ECCLESIASTICAL LAWS 93 particular local laws who have a domicile or quasi-domicile in the place, and who arc actually in the territory. Such persons are called incolae (residents). Add to this class vagi as we have already said (c. 13, §2). 3. Excused from the observance of ecclesiastical laws during the time the excusing cause continues arc those who are impeded from observing the law by reason of any one of the following circumstances: 1) inculpable ignorance, error, inadvertance, or forgetfulness (c. 2202); 2) physical force (c. 2205, SI); 3) grave fear (c. 2205, §2); 4) moral or physical inability which the Code calls grave incommodum and necessitas (c. 2205, §2). However, if there is question of invalidating or disqualifying laws, ignorance, error, etc. cannot be alleged as an excuse. And so a marriage, c. g., contracted under an invalidating impediment of which one or both parties were ignorant remains invalid (c. 16, $1)· ART. VI. Interpretation of Ecclesiastical Laws We must distinguish between authentic and private interpreta­ tion of ecclesiastical laws. §1. Authentic Interpretation (c. 17). Only the following may give an authentic interpretation to the law: I) the lawgiver himself; 2) the lawgiver’s successor; 3) those whom he or his successor has commissioned to issue authentic interpretations, e. g., the Pontifical Committee for the Authentic Interpretation of the Canons of the Code, referred to hereinafter either as Pont. Comm, or Code Comm. An authentic interpretation has the force of law. If a general interpretation, it binds all the subjects of the law; if a particular interpretation, it binds only those to whom it is directed. General authentic interpretations must be published in the deta dfiostolicae Sedis, and they go into force three months after their publication. But if the interpretation is simply a declaratory one (cfr. p. 94) it need not be published, and it is retroactive. A particular authentic interpretation may be given by way of judicial sentence rendered by the court, or it may be given extrajudicially cither by the Code Commission, or, as most often happens, by some Roman Congregation (administrative interpretation of the law). In any of the cases here cited the interpretation affects only 94 ECCLESIASTICAL LAWS the persons for whom it is intended, although it can serve as a directive, not preceptive, norm for everyone else, provided the cases are similar in every respect. §2. Rules of Private Interpretation (cc. 18-21) In the absence of an authentic declaration concerning the mean­ ing of the law, anyone may interpret the law for himself, provided he observe the rules set down by the lawgiver in c. 18-21. The administrative private interpretations of superiors are binding on their subjects, however, but recourse is permissible in devolutivo. 1. Ecclesiastical laws must be understood in the light of their words, viewed in their usual and most known signification, and taking into consideration both the text and the context of the law. This is known as the grammatical rule, and it differs from the logical rule of interpretation which we shall consider next. When applying the grammatical rule, private individuals may give a declaratory and comprehensive, but not an extensive or restrictive meaning to the law. A declaratory interpretation is one which explains a law which is clear in itself and solves only what is a negative doubt. A comprehensive interpretation is one which explains away a real positive doubt by retaining the proper meaning of the words of the law, either by giving a broad construction to the law, e.g., where filius is taken to include both legitimate and illegiti­ mate children, or by giving the words a strict interpretation, as where filius is taken to include only legitimate offspring. An extensive interpretation extends the natural and proper meaning of the words, e. g., where religiosus is construed to include novices. A restrictive interpretation excludes cases falling within the natural meaning of the wording of the law, e. g., where clericus docs not include cardinals in penal laws. Since both the extensive and restrictive interpretation in reality create a new law, they arc reserved to the lawgiver alone. 2. If grammatical interpretation fails in solving the doubt, one may have recourse to logical or analogous interpretation. He docs this: 1) by having recourse to parallel places of the Code if there are any; 2) by seeking the purpose or object of the law in the light of the circumstances which occasioned the law; 3) by ascertaining the mind of the lawgiver (c. 18). An example of interpreting the law by resorting to parallel places of the Code is that which considers the recourse granted with suspensive effect to a religious against the decree of dismissal as in c. 647 to be necessarily taken within ten days, since this period ECCLESIASTICAL LAWS 95 of time is expressly allowed for recourse granted with suspensive effect to the patron whose candidate for a benefice was rejected for the second time by the Ordinary in c. 1465 (S. C. Relig., July 20, 1923; Acta XV, 457). The purpose of the law, and what amounts to the same thing, the mind of the legislator, may sometimes be ascertained by reading the preamble of the original constitution or decree from which the condensed canon of the Code was taken. Thus, c. g., c. 1486 forbids the Ordinary to accept a resignation if the resigning cleric adds the condition that he receive a pension from the benefice which he resigns. The purpose of the prohibition is to avoid the abuse of simony. Therefore, if no danger of simony is present, e. g., if the cleric resigns because he has incurred the ill-will of the parishioners, or because of poor health, the resignation may be accepted under the condition described. 3. As a rule, laws must be construed in their broad sense. But in three cases a strict interpretation is necessary: 1) in the case of penal laws, e. g., the penalties against the publication of printed mat­ ter does not apply to mimeographed material; 2) if the law restricts the free exercise of one’s rights; for the rest, no two authors perhaps agree as to what the Code understands by this expression since every law in a sense restricts the free exercise of somebody’s rights; 3) if the law forms an exception to the general legislation thus, the Pontifical Committee declared that c. 822, §4, which permits the celebration of Mass in private homes by way of exception, must be construed strictly (c. 19; Pont. Comm., Oct. 19, 1919; Acta, XI, 478). 4. When the law is silent on a certain point, private individuals may generally consider themselves at liberty to choose any course of conduct. But superiors may at times require a working norm, and the same applies to the judge. In such cases recourse must be had: 1 ) to laws enacted in kindred legal subjects, as where the rules determining the acquisition and loss of a domicile in a diocese are applied to the acquisition and loss of a domicile in an abbacy nullius; 2) to the general principles of law applied with canonical equity, i.c., with the spirit of Christian charity and mercy, thus, Qui prior est tempore potior est jure; generi per speciem derogatur, etc.; 3) to the style and practise of the Roman Curia, i. e., the sentences of the Roman Rota and the decisions of the Roman Congregations given in particular but similar cases ; 4) to the common teaching of approved canonists, where it must be remembered that six authors suffice to 96 ECCLESIASTICAL LAWS create a common teaching, provided they each advance their own arguments in support of the opinion (c. 20). 5. Laws which have Been designed to guard against a common danger must be understood as binding even though in some particular case that danger be not present. Thus, although the reading of this or that book on the Index may not endanger the faith of a learned theologian, yet the latter is bound to the law, and requires an induit to read the forbidden book (c. 21). ART. VII Cessation of Laws (c. 22-23) Laws cease for the community: 1) through desuetude or nonobservance; 2) through repeal on the part of the lawgiver. The repeal may be explicit or. implied. Implicit repeal of a law is verified : 1 ) if the later law completely reforms the subject matter of the former law; 2) if the later law is directly contrary to the former law. Particular laws are never implicitly repealed by a subsequent general law. This must be expressly stated by the lawgiver. In doubt whether a former law has been repealed by the new legislation, the repeal is not to be presumed. It should be noted that the rules given in this article apply only to any new post-Code laws. ART. VIII. Precepts, Decrees, Instructions, Rules, Ordinances, etc. (c. 24) Not all the commands of the superior may be called laws, since they may lack one or the other element essential to laws in the strict sense, e. g., they arc not given to a perfect community, or they are imposed only for a time, etc. Such is the case with precepts. Precepts—A precept is a command given to an individual. The command is still a precept if given to several individuals, even to a perfect community, but not given in perpetuity. A law is by its nature perpetual in the sense that it does not cease when the lawgiver goes out of office. A precept is by its nature temporary, unless: 1) it is imposed without respect to duration; and ECCLESIASTICAL LAWS 97 2) it is issued by way of cn authentic document or in the presence of at least two witnesses. These are joint conditions. A law is by its nature territorial ; a precept is personal and binds the individual wherever he may go, unless the superior expressly states the contrary. A law can be given only to a perfect community; a precept can be given to individuals, imperfect and perfect communities. That every community over which an ecclesiastical lawgiver pre­ sides (cfr. p. 90) is a perfect community capable of receiving a law all authors admit, e.g., the universal Church, a diocese, a clerical exempt religious organization. But as to whether such bodies within the Church as parishes, confraternities, seminaries, etc., arc capable of receiving a law there is hopeless controversy among writers. In practice there is not much difference between a law and a common precept: both are commands which continue indefinitely since the precept given to several persons is given before witnesses, or in a document. But in a doubt the superior may be asked concerning his intention, especially as regards the extra-territorial observance of the command. As regards the duration of the command, it can be repealed by the successor in office, whether it is a law or a precept. In certain religions the constitutions expressly provide that the com­ mon precepts of the superior cease with his going out of office. Decrees, instructions, statutes, ordinances, etc.—The laws of ecclesiastical councils are called decrees, whether of ecumenical, plenary or provincial councils. Decree is also the name given to certain regulations issued by the R. Congregations; at other times such acts are called instructions. Both the decrees and the instructions of the Congregations may be called laws. They are not in the nature of formal laws since the Congregations are not lawmaking bodies. They arc merely adminis­ trative agents of the R. Pontiff, their chief function being to enforce the formal legislation of the Code. But since the canons of the Code are worded in a very general way, and, therefore, only vaguely express the mind of the lawgiver in many cases, it devolves upon the Congregations to issue either so-called declarations, i. e., answers to doubts submitted, or detailed rules explanatory of the Code legisla­ tion (decreta, instructiones). These latter constitute administrative legislation. A similar interpreting power is vested in the adminis­ trative organs of civil governments, it being implied in their powers to enforce the formal legislation of Parliament, Congress, etc. In a sense the decrees and instructions bind to the same extent xs formal legislation, save that they cannot run counter to the canons 98 ECCLESIASTICAL LAWS of the Code, nor to the formal interpretations of the Code Committee, and they lose all force when the formal law which they interpret ceases to exist. However, instructions are more directive, while decrees arc more preceptive in nature. It should be noted that according to the Motu proprio Cum juris canonici, which limits the interpreting powers of the Congregations, if new formal legisla­ tion should ever be deemed necessary subsequent to the promulgation of the Code, the Congregations competent in the matter will be in­ formed to enact such legislation, hut it must be reduced to canons and inserted in the Code at the proper place. Xo such new canons have to date been forthcoming, administrative legislation appearing to have sufficed. B}’ statutes we understand laws issued by bishops in their diocesan synods. Sometimes the term is employed to signify the legislation peculiar to a province in a religious Order. The commands of superiors falling short of laws are called precepts when given to individual subjects. If the command is given to the community, provided it is not a law but only a general precept, it is more commonly called a rule, or a ruling. Chapter II CUSTOM In the interpretation of the written law custom perforins a three-fold function : 1 ) it may either introduce a new law or enlarge the obligation of the existing law {consuetudo praeter legem) ; 2) it may repeal the existing law or lessen its obligation {consuetudo contra legem) ; 3) it may give an authentic interpretation to an existing law {consuetudo juxta legem). Hence, it is proper that Book I of the Code should include among its general norms a chapter on custom. In its inception every society had to rely almost exclusively upon the customs and traditions of the people. As the written law became more perfect and gradually replaced the unwritten law, custom as a legal force correspondingly receded into the background. The result is that custom docs not play so vital a part in the social life of the Church today as in past centuries. ART. I. Custom Defined In the material sense custom is the frequent and uninterrupted repetition of the same acts on the part of the community {consuetudo jacti). In the formal, or legal, sense custom is an unwritten law resulting from a uniform course of conduct on the part of the populace {consuetudo juris). Custom differs: 1) from written law which proceeds from the lawgiver in written form; 2) from traditional law which likewise proceeds directly from the lawgiver but by word of mouth, and which comes down to us through the testimony of witnesses, although at present the tradition may be recorded in writing; 3) from pre­ scription which is a uniform course of conduct giving rise not to law but to property rights; 4) from usage which is material custom before it has passed into formal custom; 5) from the style and practise of the ecclesiastical curia which arises from uniform acts of officials, not of the community. 99 100 CUSTOM ART. II. Division of Customs Customs are either: 1) Material customs {consuetudines facti), or formal customs (consuetudines juris), as already explained; 2) Universal customs or particular customs, according to whether they obtain in the universal Church, or only in some part of the Church, or with a certain class of the faithful, e.g., a religious Order; 3) Customs beyond the law (praeter legem), customs against the law (contra legem), or customs in harmony with the law (juxta legem ) as already explained ; 4) Ordinary customs which have existed less than 100 years; centenary customs which have existed for 100 years or more, and immemorial customs whose origin no living man can have learned directly from any eye-witness living or dead. ART. III. Requisites of a Lawful Custom In order that custom may obtain the force of law four condi­ tions are required: 1) that it be introduced by the community; 2) that the custom be reasonable; 3) that the consent of the law­ giver be present; 4) that the custom be prescribed. §1. The Community Only a community capable of receiving a law may introduce a custom having the force of law (c. 26). The reason is contained in the very definition of custom as unwritten law. If a community is not sufficiently large to be governed by written laws, it cannot be governed by unwritten laws, but only by precepts. How difficult it is to determine which communities in the Church arc competent to be governed by written laws, and hence also by custom, we have seen. §2. Customs Must Be Reasonable (c.27). Only reasonable customs can beget the force of law, since no law can bind in conscience unless it is in conformity with right reason. 'l'he following customs are not to be considered reasonable; 1 ) those which are in opposition to the divine law, c. g., the modern abuse of civil divorce and remarriage; 2) customs which arc expressly CUSTOM 101 reprobated by the written law, e. g., a custom which permits one parish to be governed by two or more pastors at the same time (cfr. c. 460) ; 3) customs which are subversive of ecclesiastical discipline, e. g., a custom which withdraws an ecclesiastical institu­ tion from canonical visitation on the part of any superior. §3. Consent of the Lawgiver In the Church custom obtains the force of law solely from the consent of the competent ecclesiastical superior (c. 25). The reason is that whereas in the State the people are considered the depositaries of all authority, and can therefore introduce a custom having the force of law without the sanction of the legislators, who arc the mere representatives of the citizens, yet in the Church by divine law all authority resides with the Pope and the bishops, or their lawfully constituted vicars, e. g., abbots and prelates nullius. And so, in the Church the faithful simply furnish the material for a custom, i. e., the repeated acts, and silently petition the lawgiver to endow their conduct with the force of law. However, explicit consent to this or that custom is not required on the part of the superior, but legal consent suffices. Legal consent is that which the superior gives beforehand in a general way to any material custom possessing the qualifications specified by the law­ giver. Such legal consent is given in c. 27. §4. Prescription of Custom A custom to beget the force of law contra or praeter legetn must have continued for 40 years (c. 27, 28). But only a centenary or immemorial custom may militate against a written law which con­ tains a clause explicitly forbidding (not reprobating) future contrary customs, (c. 27). A custom which the law positively reprobates is outlawed. A custom secundum legem is the best interpreter of the law. Although the Code is silent on the point, many authors would like­ wise require a 40 years’ observance before such custom would beget the force of law. Before the 40 years have lapsed, the custom may be considered a safe directive norm of action. After 40 years the interpretation of the law contained in the custom becomes preceptive and binding. If it has correctly interpreted the mind of the law­ giver, it continues as a custom juxta legem ; if it has enlarged the obligation originally intended by the lawgiver, it becomes custom praeter legem; if it has restricted that obligation, it has developed into a custom contra legem. 102 CUSTOM Other requisites of a lawful custom as noted by the moral­ ists are: 1) the custom must have been introduced by the people freely and with the intention of creating an obligation; 2) the acts constituting the material for the custom must have been repeated frequently, so that if interrupted to a sufficient degree, the custom ceases altogether. How many interruptions there must be depends upon how often the custom acts are placed, more frequent interruptions being required in the case of acts recurring several times a year, e. g., in Mass rubrics, than in vigil fasts which occur only once a year. In the latter case failure to repeat the custom act only one year will suffice to interrupt the custom. It should be noted that it is extremely difficult to deter­ mine in any given case whether all the requisites for a lawful custom have been verified. It is for that reason that modern States generally refuse to recognize custom as a source of civil law, preferring the certainties of the written to the uncertainties of the unwritten law. However, the Church is a world-wide organization, and local cus­ toms are to be respected, since laws so universal as her’s cannot find equal application in every country due to differences of temperament, racial habits, etc. The moralists tell us that those who begin a custom contra legem arc guilty of sin, they being in mala fide. But this is not always the way a contrary custom is introduced. Many modern customs in the Church which militate against canon law have had their origin in papal induits. Even if a later law revokes contrary induits, if the conditions which justified the induits continue, there would seem to be a bona fide custom established contra jus. supposing all the requisites of a custom otherwise are at hand, as listed above. ART. IV. Cessation of Customs Customs are repealed by contrary customs or contrary written laws. (c. 30). But centenary and immemorial customs are not re­ pealed by a contrary written law unless the new law specifies this. Likewise, a particular custom is not revoked by a contrary general law, unless the new law contains an explicit clause to that effect (c. 30). At this place we are speaking of the repeal of new post-Codc customs. As to customs which existed prior to the promulgation of the Code, their repeal is governed by c. 5 on which we have already commented. Chapter III THE COMPUTATION OF TIME. Rights and duties arise from laws, precepts, rescripts, judicial sentences and other acts of the lawful superior. And just as these acts of the superior begin with time and end with time so do our rights and duties. It is important, then,to know how to reckon time in the legal sense so that we may know at what precise moment our rights and duties begin, and at what precise moment they cease. The reckoning of time, therefore, is treated in Bk. I of the Code in conjunction with the general norms of interpretation. The rules which follow have no application: I ) in those liturgi­ cal matters where liturgy has its own way of computing time, c. g., the beginning of the ecclesiastical year coincides with the first Sun­ day of Advent; 2) in contracts where the satisfying of obligations is governed by the civil law (c. 31 and 33, §2). ART. I. Day, Week, Month and Year Defined (c. 32) A day consists of 24 consecutive hours, and begins with midnight. A week consists of 7 days. Λ civil month consists of 30 days, a civil year of 365 days. A nat­ ural month, on the other hand, or a calendar month, consists of 28. 29, 30 or 31 days, depending on the month in question ; and a natural year consists of 366 days during a leap year. The rule is that a month and a year must be understood in the civil (juridical) sense as just defined, saving three cases: 1 ) If month and year are designated either by their proper name, C. g., during the month of February, or equivalently, e. g., next month; » 2) If the starting point (termùm a quo} is mentioned cither explicitly, c. g., three weeks' vacation from August 15, or implicitly, e. g., ten days for appeal; 103 104 COMPUTATION OF TIME 3) If the nature of the subject matter suffers no interruption, e. g., suspension fur a month. In all these cases the calendar is followed (cfr. c. 34, §1, 2, 3, n 1). ART. II. Computing the Hours of the Day (c. 33, §1.) In computing the hours of the day one must adopt the time sanctioned by the common usage of the place, saving the exceptions of the next paragraph. The reason is that in public matters order must be preserved and confusion avoided, and a uniform system of computing time is essential to that end. For the contrary reason, i. e., because there is question of matters which do not affect the public order, greater latitude is allowed the individual in four cases: 1) in the private celebration of Mass, and by this we can understand any Mass which need not be said in virtue of a public obligation, as is the parochial Mass, the conventual Mass of Canons and regulars, etc.; 2) in the private recitation of the canonical hours, i. e., the recitation not conducted in choir made obligatory by law as in the case of Canons and regu­ lars; 3) in the reception of holy communion; 4) in the observance of fast and abstinence. In the above cases the privilege is granted of following either; 1) the time ordinarily observed in the place; or 2) local true time; or 3) local mean time; or 4) standard time; or 5) any extraordinary legal time. Local true time, called also sun time, is measured by the sun, a true solar day consisting of the interval of time between two suc­ cessive transits of the sun over the observer’s meridian. Due to the variation in speed with which the earth revolves upon its axis at different seasons of the year, the solar day correspondingly varies in length from day to day. Solar time is indicated by a sun dial. Local mean time was introduced after clocks were invented to serve as a constant unvarying system of time measurement, and thus to obviate the daily variations inherent in the solar time system. A mean solar day is the interval between two successive transits of a fictitious sun over the observer’s meridian, i. e., of a sun which is conceived as crossing the observer’s meridian at the same precise moment each day. It consists of 24 hours without variation, this being the average of all the solar days of the year. COMPUTATION OF TIME 105 Standard time, called legal regional time by the Code, is that which is computed from a given (standard, prime) meridian and by the Federal law (with us) made obligatory for all places within a given zone. 'I'he zone covers 15 longitudinal degrees as a rule, so that all places within seven and a half degrees east and west of the standard meridian follow the time of that meridian. In the United States we have five zones, or standard times: 1) colonial time which is measured by the 60th degree west of Greenwich, England; 2) eastern time which is measured by the 75th degree; (3-4-5) central, mountain and Pacific time which are measured respectively by the 90th, 105th and 120th meridian. Standard time became a necessity with the advent of the railroads, and it was mainly at their insistence that the time was adopted in this country. For under the mean local time system every village and town followed its own local time, and every railroad company had its timetables drawn up without consideration for those of other companies. As a result collisions often occurred, not to mention that people were constantly missing their train. It should be noted that rhe Interstate Commerce Commission has jurisdiction in drawing the boundaries of the different zones. These boundaries arc constantly varying according to the demands of commerce, and arc not always confined to 15 degrees of longitude. Sometimes it is an advantage to follow standard time, at other times local time is more advantageous. In this connection it should be remembered that all places within a given zone lying cast of the standard meridian find their local time in advance of standard time; whereas all places lying west of the meridian find that the standard time is in advance of the local time. The difference between standard and local mean time in any place is ascertained by computing the difference between one’s own meridian and the standard meridian, a difference of one degree corresponding to a difference of four minutes. Legal extraordinary time is that which the civil law authorizes for some transient cause. Thus, in war time the day is advanced one hour during the summer seasons in order to utilize natural, or day light, and thus to spare artificial light. 'I'he question arises whether the Code permits one to follow two or more different time systems in order to satisfy two or more concurrent obligations. AU authors are agreed that this would be forbidden if the concurrence of obligations is of an intrinsic nature, c. g., on a day of fast and abstinence, it would not be permitted to follow one time in respect to fast and another in respect to 106 COMPUTATION OF TIME abstinence. If, however, there is question of merely an extrinsic concurrence of obligations, the matter is controverted between two equally divided schools of canonists. Let it be noted that the con­ currence of obligations is intrinsic or extrinsic according to whether the obligations can be fulfilled independently of each other or not. Even in the case of extrinsic concurrence many authors deny one the privilege of adopting two or more different time systems if the extrinsic concurrence arises from the fact that the different obliga­ tions arc satisfied by the same act or omission. They in: tance the case of one who on midnight between Friday and Saturday observes Friday abstinence according to one time and the Saturday Eucharistic fast according to another time. They argue that because of the affinity of subject matter here, it is reasonable to suppose that the lawgiver wishes the two precepts to be joined. The second group of writers favors liberty in the case described : 1 ) because no real absurdity is involved in adopting two different times, since it may be Saturday as far as Friday abstinence is concerned, and Friday as far as the Saturday Eucharistic fast is concerned; 2) because the lawgiver has made no exception of this case in c. 33, so that the principle may be invoked : legislator quod voluit expressit, quod noluit tacuit ; 3) because c. 33 contains a privilege, and privileges ought to to be construed broadly: favores ampliandi sunt. ART. III. Computing the Beginning and End of Several Weeks, Months and Years (c. 34, §3) A day always begins with midnight when taken by itself. When viewed as forming a fraction of a longer period of time, a day may or may not begin with midnight, depending on whether the time in question is to be reckoned naturally or civilly. A time period is said to be computed naturally (de momento ad momentum) when it be­ gins with a certain moment of the day and ends precisely at the same moment of another day. It is computed civilly when it begins with midnight and ends with midnight so that the fractional day preceding the first midnight is not counted. Natural computation obtains whenever the starting point has not been designated, e. g., suspension for a month, three months' vacation, etc. Here we suppose a latae sententiae suspension not COMPUTATION OF TIME 107 pronounced by the superior but by the law alone. Likewise we suppose a vacation which a cleric is at liberty to begin at any time of his choice. Civil computation, on the other hand, applies whenever the starting point has been designated by the law or by the superior. Here: 1 ) If the starting point does not coincide with midnight, the fractional part of the first day is not computed, and the time expires with the end of the day of the same number, unless the month lacks a day of the same number, in which case the time expires with the last day of the month, e. g., the 14/Λ year of age, the year of novitiate, eight days from the vacancy of the episcopal see, ten days allowed for appeal, etc. Thus, e.g., if the novitiate began with investment with the habit at 10 a. m. on August 2, 1946, it will expire at midnight between Aug. 2 and 3, 1947. The examples here given are cited by the Code as illustrative of periods not beginning at midnight. In some exceptional case it is possible for one to be born precisely at midnight, for a bishop to die precisely at that moment, etc., and in that supposition the rules contained under n. 2 obtain, namely : 2) If the starting point coincides with midnight, the time ex­ pires at the beginning of the day of the same number. Thus, if the bishop grants Titius two months' vacation from Aug. 1$, we may presume from this mode of expression that the vacation is to begin at midnight between Aug. 14 and 15. In that case it will end at mid­ night between Oct. 14th and 15th. 3) When acts of the same nature are repeated at stated inter­ vals, and even though the starting point does not coincide with mid­ night, the new act may be placed at any time of the day of the same number as the fractional day on which the time period began. Thus, e.g., a religious who made his first profession at 10 a. m. on Aug. 3, 1947, may, after three years, if he is of age, pronounce perpetual vows at any time on Aug. 3, 1950. But the beginning of the novitiate and first profession arc not to be so computed, since novitiate and profession arc not acts of the same nature, (cfr. Code Comm. Nov'. 12, 1922; Acta XIV, 661).· ART. IV. Tempus Utile and Tempus Continuum Tempus utile is that which does not transpire for one who is ignorant of his rights, or is unable to exercise or prosecute his rights ; 108 COMPUTATION OF TIME tempus continuum is that which suffers no interruption for any cause (c. 35). In a case of doubt time must be presumed continuous; if tempus utile is intended, the law must expressly state that such is the case. The reason is that it is more in the nature of time that it should run on without interruption. The Code contains many canons which explicitly provide that tempus utile is intended, e. g., c. 161 ; c. 1884. ART. V. Physical and Moral Computation of Time 'l'ime is computed physically when it is reckoned to the second ; otherwise it is computed morally. All time must be computed physically, and the principle; parvum pro nihilo reputandum docs not apply. The reason is that when the law or the superior has determined a matter so accurately as in the case of time, he has thereby excluded all possibility of latitude on the part of the subject. Therefore, when the clock strikes midnight, one day has ended and another has begun. Should two or more clocks indicate different times, a person is at liberty to choose between them, provided they ordinarily keep good time, for in that supposition it is reasonable to presume that the chosen clock indicates the correct time at the present moment likewise. Chapter IV FAVORS Having ascertained the law and its correct meaning, one must further inquire whether the law has possibly been modified in some particular case either by reason of contrary custom, a permanent ex­ emption, a transient excuse, or, as most frequently happens by reason of a privilege or dispensation. And since all purely ecclesiastical laws can suffer modification in virtue of a privilege or dispensation, it remains to discuss these two forms of favors in Bk. 1 among the general norms of interpretation. We have already considered ex­ empting and excusing causes on p. 93. It should be observed at this place that canon law must suffer more exceptions in its application and enforcement by reason of privi­ leges and dispensations than civil law. Civil legislation is legislation for citizens of only one country, and there is little difficulty in framing or enforcing such legislation due to the fact that the social needs, habits, traditions, temperament, etc. of the citizens are comparatively uniform throughout the nation and have been taken into considera­ tion by the lawgiver. It is otherwise with a body of laws which, like the common law of the Church, is designed for the members of the Church throughout the world. Such a world-wide legal system can­ not be enforced with uniform rigor in every country, but must be continually modified for particular places and persons. These modi­ fications of the law most frequently take the form of privileges and dispensations. Thus, in the United States with its preponderantly non-Catholic population it is more difficult to enforce the prohibition against mixed marriages than in a Catholic country like Italy, since it is more difficult for a Catholic with us to find a suitable mate of his own faith for marriage. Hence, while a dispensation from the law prohibiting mixed marriages is rarely granted, e.g., in Italy, with us such dispensations are of daily occurrence. We shall divide our chapter into two articles: in article I we shall discuss favors in general, i.c., rescripts, and in article II favors in particular, i.e,, privileges and dispensations. 109 110 FAVORS IN GENERAL—RESCRIPTS ART I. Favors in General (Rescripts) It is customary in canon law to explain the general principles which govern favors under the heading of rescripts. The reason is that privileges and dispensations are granted in writing as a general rule by the ecclesiastical superior. In the present article, therefore, we shall use the words favors and rescripts interchangeably. §1. Nature of Rescripts A rescript (from re-scribere, to write back) is a written favor granted by the Holy See or the Ordinary in response to a request. Rescripts differ from privileges, dispensations and other favors (e.g., permissions) in that the rescript is the container, while the favor is the thing contained. There is here but a difference of form: rescripts are the documents conveying the favors. Hence, whatever affects the validity of the document affects the validity of its contents. §2. Rescripts Classified Rescripts are divided into: 1) rescripts of justice which refer to trials and extrajudicial settlements of litigations, and rescripts of favor which refer to all other matters; 2) rescripts in forma gratiosa which are granted directly to the petitioner, and rescripts in forma commissoria which the superior grants to the petitioner only through the agency of an intermediate party called the executor; 3) rescripts granted ad instantiam or ad preces, and rescripts granted motu proprio : the latter being those rescripts which contain the clause motu proprio, the former being all rescripts which do not carry that clause: 4) rescripts contra jus which involve favors inconsistent with the observance of the law, e.g., dispensations, and rescripts praeter jus which grant favors consistent with the observance of the law. e.g., many privileges and all permissions. §3. Beneficiaries of Rescripts (c. 36-37) Favors can be granted to all who arc not debarred from enjoy­ ing them. The following are excluded : FAVORS IN GENERAL —RESCRIPTS 111 1) Those who have been excommunicated, suspended or inter­ dicted by an ecclesiastical court sentence. These are incapable of receiving any kind of favor as long as they remain under censure. 2) Those who are considered incapacitated with respect to certain favors cannot validly receive those favors, e.g., a deacon cannot receive title to a parish. But in such cases, if the rescript contains a clause derogatory of the petitioner's incapacity, the rescript will be valid. Rescripts can be petitioned for others without their knowledge and assent. This principle finds practical application where a mar­ riage must be validated by a sanatio in radice due to the fact that one or both parties cannot be informed of the invalidity of their mar­ riage without serious consequences. §4. When Rescripts Take Effect (c. 38; 41) Rescripts granted in forma gratiosa take effect the moment they are dated. Hence, the reason alleged in the petition must be verified at that time, and if it is verified only later, the rescript is invalid. Rescripts granted in forma commissoria take effect only from the time of their execution, and so it suffices that the reason offered in the petition be verified at that moment. §5. Conditions in Rescripts (c. 39-40; 42-44) Express conditions—Conditions which are expressed in a re­ script by the particles: si, dummodo, or equivalent words, are essen­ tial to the validity of the rescript so that their non-fulfillment, or non-verification, will invalidate the favor. The ablative absolute must be considered equivalent to an essen­ tial condition if the nature of the subject matter so postulates, e.g., praemissa accusatione sacramentali when found in faculties to absolve from reserved sins; otherwise the ablative absolute expresses only a condition for the licit enjoyment of the favor, e.g., imposita salutari poenitentia. Implied conditions—In every rescript two conditions are im­ plied : 1) That at least one of the motive reasons alleged be true in case several reasons are offered. Hence, if all the reasons offered in 112 FAVORS IN GENERAL—RESCRIPTS the petition were false, this invalidates the favor. But if in addition to one or more true reasons other reasons of a false nature were cited {obreptio), this will not affect the validity of the favor. 2) That nothing is concealed in the petition which the com­ mon law, or the practise of the Roman Curia demands should be stated for validity. Provided this requirement is satisfied, then the concealment of other matters is non-essential, i.e, subreptio in such matters will not affect the validity of the favor. Common lew requires for validity mention of the following facts in every petition, provided the facts are such : 1 ) that the favor has ahead}· been denied by one Congregation or Office of the Curia; 2) that the favor which is asked of the bishop has already been re­ fused by the vicar-general; 3) that the petitioner is disqualified for the favor, or that it militates against local custom, or particular Statutes, or the acquired rights of third parties. Other facts must be mentioned in petitions for certain kinds of favors, and these can he learned only by a perusal of the Code, e.g., when a religious community asks for an Apostolic induit to contract a debt in excess of 30,000 lires ($6,000), the petition must state if there arc any outstanding debts, otherwise the permission subse­ quently granted is invalid. The style of the Roman Curia varies so much from time to time, and with the different departments of the Curia, that one docs not always know just what information this or that Congregation de­ sires in some particular case. Hence, it is advisable that each bishop do business with the Holy See through some accredited agent at Rome. §6. Motu Proprio Rescripts (c. 45-46) A motu proprio rescript is one which carries that clause. It means that notwithstanding the fact that a petition preceded, the Roman Pontiff desires that the favor be regarded as one granted on his own initiative, and, therefore, bestowed with more than ordinary liberality. That liberality finds expression in the following rule: a concealment in the petition of some otherwise essential fact {subreptio) does not invalidate motu proprio rescripts provided the subreptio does not extend to concealing these facts: 1) that the petitioner is incapacitated for the favor; 2) that the favor militates against local custom, particular statutes, or the acquired rights of third parties. But obreptio invalidates motu proprio rescripts to the FAVORS IN GENERAL —RESCRIPTS 113 saine extent as it docs every other kind of rescript. Hence, if the only reason offered in the petition was false, this invalidates even a motu proprio rescript. §7. Error in Rescripts (c. 47) An error in the name of the petitioner or the grantor does not invalidate favors granted by the Holy See. Neither does an error concerning the petitioner’s domicile, or the object of the favor, render the favor invalid. In all these cases it suffices that there exists no doubt in the mind of the Ordinary as to the identity of the beneficiary, or the nature of the favor. §8. Conflict of Rescripts (c. 48) When two or more rescripts conflict the following rules govern: 1 ) The particular favor prevails over the general one on those points where it particularizes; 2) If both favors are equally particular, or equally, general, the rescript issued first prevails; 3) If both favors were granted on the same day, the rescript of the first petitioner prevails; 4) If it cannot be ascertained who was the first petitioner, both rescripts are invalid, and the petition must be renewed if the favor is still desired. Such conflicts as here contemplated rarely occur today due to the modern efficient organization of the Roman Curia which now prevents an overlapping of jurisdiction among two or more Congre­ gations or Offices. §9. Interpretation of Rescripts (c. 49-50) Rescripts must be interpreted in the light of their wording, understanding the words in their usual and most known signification, first the canonical and then the popular meaning if the word has no technical meaning. In the event that both a broad and strict interpretation is pos­ sible, the broad interpretation must be preferred. To this rule there are three exceptions. The strict interpretation must be employed : 1 ) If the rescript is one of justice or refers to litigated matters. Hence 114 FAVORS IN GENERAL —RESCRIPTS a cleric who is delegated to try a case between A and B, cannot assume jurisdiction also in a case between C and D. For the rest, rescripts of justice are not so frequent today as in past centuries. In the Middle Ages one could easily obtain from Rome the privilege of being judged by a cleric other than the local Ordinary. This led to innumerable abuses. At the present day the Holy Sec, however, sometimes dele­ gates the local Ordinary to try cases reserved to itself; e.g., ratum et non-consummatum marriage cases. Such a written delegation amounts to a rescript of justice; 2) If the rescript runs counter to the general law in favor of private individuals, e.g., all dispensations. But a privilege contra jus granted to a community need not be strictly in­ terpreted, e.g., the privilege of exemption accorded to regulars; 3) If the rescript refers to ecclesiastical benefices, for petitions of this nature savor of worldly ambition. And so, a rescript conferring a canonry does not include a dignity in the cathedral chapter. §10. Execution of Rescripts (c. 51-59) Seldom does the Holy See grant rescripts to private individuals in forma gratiosa, i. e., directly without the intervention of an inter­ mediate executor. If this should happen, however, the rescript must still be presented to the Ordinary: 1) if the rescript so states; 2) if the favor concerns the public order, e.g., the faculty of erecting the Way of the Cross; 3) if certain conditions must be verified, e.g., the privilege of a private oratory requires that the place where Mass is to be said be decent and becoming, the judgment of which is left to the Ordinary. In these cases since the Ordinary is not an executor, he merely affixes his visum. The presentation may be deferred as long as it pleases the bene­ ficiary, provided no fraud or malice is involved in such delay. There would be fraud, e.g., where the presentation of the rescript is de­ layed in order to permit the petitioner to become capacitated for the favor in course of time. As a rule petitions will not be honored by the Holy See unless they carry the Ordinary's endorsement. But petitions may be sent directly to the S. Penitentiary by any Catholic; and the rescript will be sent directly to the petitioner with the proviso that he choose any approved confessor in the diocese to execute the same, e.g., to grant absolution from a reserved censure. In practice, however, the con? fessor usually requests the favor of the S. Penitentiary in the peni­ tent’s name, and adds his (the confessor’s) address. This is true FAVORS IN GENERAL—RESCRIPTS 115 where the local Ordinary has no delegated faculties, or where he cannot be approached without danger of violating the seal of con­ fession. Concerning rescripts intended for the external forum, these are sent to the petitioner's Ordinary, whom also the Holy See appoints the executor of the rescript. In this case: The rescript may be granted in forma commissoria necessaria or in forma commissoria libera. Whether the rescript has been grant­ ed in the one or the other form can be learned only from its wording. If it is granted in forma commissoria libera, the Holy See leaves it to the executor to cither grant or withhold the favor according to his conscience and prudent judgment. If it is granted in forma commissoria necessaria, the executor’s function is purely a ministerial one: he has no choice in the matter, and is obliged to execute the rescript. However, even here he may and must deny the favor: 1 ) if it is known that the petition suffered from a manifest subreptio or obreptio; 2) if conditions contained in the rescript arc not verified; 3) if in the judgment of the executor the petitioner is so unworthy of the favor that its grant would prove offensive to others. In the last supposition the executor should with­ hold the favor, notifying the Holy Sec as soon as possible of his action. In practise the above suppositions will rarely occur since, as we have said, petitions addressed to the Holy See must first be endorsed by the Ordinary, generally speaking. Rules of procedure—Whether one has been appointed a volun­ tary or a necessary executor of a favor, he must always observe the following rules: 1) The executor discharges his office invalidly before he has come into possession of the rescript, and has ascertained its authen­ ticity and integrity, unless he has been informed beforehand of the grant by authority of the grantor, e.g.. by cablegram. 2) The executor acts invalidly if he exceeds the limits of his authority. This happens: 1) when he grants more than the rescript calls for; 2) when he grants the favor to more beneficiaries than are designated in the rescript; 3) if he neglects the essential conditions specified in the rescript, e.g., in marriage dispensations from mixed religion the parties must sign the promises; 4) if he disregards the substantial mode of procedure, e.g., if he has been delegated a judge he must observe the formalities of a trial as in Part 1 of Bk. IV. 3) Rescripts intended for the external forum should be ex­ ecuted in writing, this being required for licitness, not validity. The reason is to furnish the beneficiary with proof of the favor should proof be required of him later on. Rescripts affecting the sacra­ 116 FAVORS IN GENERAL —RESCRIPTS mental forum are executed by the confessor orally, the rescript being destroyed as soon as possible. 4) The executor can delegate another person to discharge his office. Three cases arc excepted: 1) if substitution was forbidden; 2) if the grantor had appointed a substitute; 3) if the executor was chosen for personal qualifications. In these excepted cases, however, the executor is not forbidden to leave to another the so-called prepara­ tory acts, e.g., a delegated judge could appoint an auditor to preside at most sessions of the trial, reserving to himself the rendering of the sentence. 5) Rescripts may be executed by the original executor’s suc­ cessor in office or dignity, unless the executor had been chosen for personal characteristics. 6) If in executing the rescript, the executor should have erred, he may execute it anew. 7) The amount chargeable for the execution of rescripts is to be determined by the provincial council, or a convention of the bishops of the province, unless the Holy See specifics the charges in the rescript itself, as is not unusual, e.g., in the quinqennial faculties. §11. Cessation of Rescripts (c. 60-62) Favors cease: 1 ) By revocation on the part of the grantor. But the revoca­ tion does not become effective until the beneficiary has been informed of the revocation. 2) By contrary law; but in this case the law must contain a clause expressly derogatory of the favor, unless the law is that of the grantor’s superior. In other cases favors do not cease by a contrary law. 3 ) By vacancy in the see of the grantor, but only in two cases : 1) if it is so provided in the rescript, e.g., by the clause: ad beneplaci­ tum nostrum; 2) if the rescript was granted in forma commissoria voluntaria in favor of certain specified beneficiaries and the executor has as yet taken no steps to discharge his office, e.g., if a specified marriage dispensation was obtained from the Holy See in favor of Titius, and before the bishop signs the document of execution, the Holy See becomes vacant; (not if the bishop granted a dispensation in virtue of his quinquennial faculties and before Titius is married the Holy See becomes vacant). PRIVILEGES AND DISPENSATIONS 117 4) In the same way as privileges, if the rescript contains a privilege (cfr. p. 121-122). 5) In the same way as dispensations if the rescript contains a dispensation (cfr. p. 121-122). ART IL Favors in Particular (Privileges and dispensations) We shall consider only those points wherein privileges and dis­ pensations differ. For the most part these two kinds of favors have little to differentiate them, their points of similarity far exceeding their points of dissimilarity. On those points where they agree, namely insofar as they are both favors, they are governed by the law on rescripts. Hence, when some point concerning the correct inter­ pretation of privileges and dispensations arises the reader will find himself more often than not consulting the preceding article of this chapter. §1. Nature of Privileges and Dispensations A privilege is a permanent favor either consistent with the observance of the law {praeter jus) or inconsistent with it (contra jus). A dispensation is a transient favor always inconsistent with the observance of the law (contra jus). A privilege and dispensation, therefore, differ from each other in two respects: 1) a privilege may be praeter jus, a dispensation is always contra jus; 2) a privilege is a permanent favor, a dispensation is a transitory one. To be permanent a privilege need not be perpetual or of indefi­ nite duration. A favor granted for two, five, ten years, etc., may be considered permanent in the sense that its duration is not made to depend upon the permanency of the cause for which it was granted. On the other hand, a dispensation is always granted for a transient cause, and when this cause no longer holds the dispensation also ceases. Thus, the faculty to permit meat on days of abstinence grant­ ed for five years is a privilege; permission to cat meat during this ill­ ness, this epidemic, this war, etc., is a dispensation. Hence ,the Code defines a dispensation as: a relaxation of the law in a particular case, understanding by the phrase particular case a transient cause. 118 PRIVILEGES AND DISPENSATIONS §2. Modes of Acquisition (c. 63-65) Privileges are acquired: 1) by direct grant; 2) by communica­ tion; 3) by custom; 4) by prescription. Dispensations, on the other hand, are acquired only by direct grant, as is evident from their very nature. Privileges arc said to be granted and acquired by communication when the legislator provides through a general ruling that whatever privileges he grants to one class must be understood as given to another class. Communication of privileges is frequent between an archconfraternity and its associated confraternities; also between regulars of a first Order and members of the second and third Orders. But the capacity of the subject must be considered. Thus, nuns may enjoy the Missal and Breviary of the first Order, but they are excluded, of course, from the exercise of faculties to absolve from reserved cases which the priests of the first Order may happen to possess. Privileges arc communicated either in forma accessoria, or in forma aeque principali. Which mode of communication is intended in any given case can be ascertained only from the wording of the grant. When communicated in forma accessoria privileges are en­ larged, restricted, or lost for the second grantee by the very fact that they are enlarged, restricted or lost for the original grantee. This ruling, on the other hand, docs not apply to privileges communi­ cated in forma aeque principali. §3. Author of Privileges and Dispensations (c. 80-83) Privileges and dispensations may be granted: 1) by the law­ giver; 2) by his successor; 3) by his superior; 4) by his delegate. As to privileges, it is not the practise to delegate others to grant such favors. Powers arc delegated in order to meet cases of urgent necessity as a rule. But there can be no urgent reason for granting a permanent favor. It is otherwise with transient favors, i. c., dispensations. From the common laic the following may dispense: 1 ) The Roman Pontiff, as is evident, he being the lawgiver. Equal powers with the Roman Pontiff have the Roman Congrega­ tions so far as they have been authorized to represent him in the matter. 2) Bishops and other local Ordinaries. These may dispense: PRIVILEGES AND DISPENSATIONS 119 (a) in a doubt of fact (c. 15) ; (b) in ail urgent cases where re­ course to the Holy See is difficult and there is danger in delay, and there is question of a law from which the R. Pontiff is wont to dis­ pense (c. 81 ) ; (c) outside of urgent cases whenever they are express­ ly empowered by the Code to dispense, e.g., in virtue of c. 1028 from marriage banns, and in all cases where they have delegated power, e.g., by reason of their quinquennial faculties. 3) Pastors can dispense from the observance of holydays (c. 1245), from fast and abstinence (c. 1245), and from certain marriage impediments within the limits of c. 1044, 1045. These powers they have by the Code. Whether a pastor enjoys other dispensing faculties in virtue of delegation by the Holy Sec or the local Ordinary is a question of fact, not a question of law. 4) Confessors as such can dispense from occult irregularities (c. 990), from certain marriage impediments (c. 1044, 1045), and from vindictive latae sententiae penalties in urgent cases (c. 2290). They may have more extensive faculties to dispense by virtue of delegation on the part of the S. Penitentiary or the local Ordinary. Outside of these suppositions a confessor as such can at the most declare the penitent excused from the observance of the law by reason of physical or moral inability, e.g., from fast. 5) In clerical exempt religions major superiors have the same dispensing powers as Ordinaries with respect to their own subjects. Local superiors have the dispensing power enjoyed by pastors with respect to their religious subjects. In non-cxempt religions superiors, since they have no jurisdiction, cannot grant dispensations save in virtue of delegated faculties, but they can declare exemptions. From the laws of plenary and provincial councils local Ordi­ naries may dispense in individual cases for a just cause. |4. Causes Required for Privileges and Dispensations (c. 84) The Code is silent concerning the nature of the reasons required to justify a privilege. This is logical because privileges, as we said, are seldom if ever granted by delegated authority. When approached for a privilege the lawgiver himself will pass judgment on the reasons offered in the petition. Hence, we will confine ourselves to dispensations. Ever)· lawgiver validly dispenses in his own law even without a just cause, but not licitly unless a just reason be present. Otherwise he would sin by partiality. 120 PRIVILEGES AND DISPENSATIONS Those inferior to the legislator must have a just cause for dispensing, otherwise the dispensation is both invalid and illicit. This ruling should be borne in mind especially by pastors and others with the care of souls when applying to the bishop for matrimonial dispensations. They should make sure to state a reason in the petition. The bishop in this case needs a just cause, for he is dispensing in the law of the superior, whether by ordinary or delegated power is immaterial. A just and reasonable cause is required. The cause is just and reasonable when due proportion is observed between the gravity of the law from which a dispensation is sought and the amount of hardship which the observance of the law would otherwise entail. Hence, a light reason suffices to dispense from a law which binds sub levi, a grave reason being required in the case of laws binding sub gravi. The Holy See has listed a number of reasons which may be considered canonical and, therefore, just and reasonable, to dispense from marriage impediments. In other cases the practise of the Roman Curia may shed some light on this subject. For the most part it will be left to the judgment of him who dispenses to decide whether the reason alleged in the petition is just and reasonable. And lest scruples arise from this somewhat vague ruling, the Code states that in doubt concerning the sufficiency of a just cause, a dispensation may be both validly and licitly requested and granted. §5. Interpretation of Privileges and Dispensations (c. 67-70 ; c. 85) There is but one rule governing the interpretation of dispensa­ tions and it is this: dispensations must always he given a strict interpretation (c. 85). They are a wound on the law. As to privileges, their construction follows the rules given above for rescripts in general, i.e., they should be interpreted broadly: favores ampliandi. Excepted are: privileges contra jus, those which refer to trials, and those which refer to benefices. In addition to the foregoing rules which are applicable to all favors, the following apply to privileges in particular: 1) No one is bound to make use of a privilege granted him for purely personal advantages, e. g., the privilege of a private oratory. It is otherwise if the privilege was conferred in behalf of others, c. g., faculties to absolve from reserved cases. But privileges granted to a class cannot be renounced by the individual, e. g.. the privilege of the forum, privilege of precedence, etc. PRIVILEGES AND DISPENSATIONS 121 2) Unless the contrary is evident, a privilege is to be con­ sidered perpetual. This simply means that the privilege docs not cease by cessation of the motive alleged by the petitioner. For the rest, there arc various ways in which privileges, though perpetual, can cease, as we shall learn directly. 3) Habitual faculties are to be considered privileges praeter jus, and therefore, admit of broad interpretation. If given to bishops and other Ordinaries, they pass to their successors in office. And such faculties granted to the bishop belong automatically to the vicar­ general also (c. 66). §6. Cessation of Privileges and Dispensations (c. 70-78; c. 86) 1 ) By contrary law privileges contained in the Code cease. Other privileges, c. g., those obtained by direct grant, are not lost by a new contrary law unless the law expressly so provides. 2) By renunciation privileges cease after the renunciation has been accepted by the competent superior, e. g., a title or dignity. 3) By vacancy in the office of the grantor only those privileges cease which were granted with the clause: ad beneplacitum nostrum, or its equivalent. 4) Personal privileges do not cease with departure from the territory of the grantor, e. g., the privilege of reading books on the Index. 5) Real privileges, e.g., an indulgence attached to a rosary, an altar, etc., cease with total destruction of the object. 6) Local privileges, e. g., the title of basilica enjoyed by some church, cease with total destruction of the place, unless the place is rebuilt within 50 years. 7) By revocation in the same way as favors in general, espe­ cially where the privilege is abused. 8) By non-use if the privilege is onerous to others, and the beneficiary has failed to use the privilege for the length of time sufficient for prescription. 9) By lapse of time, e. g., in the case of quinquennial faculties. Dispensations cease in the same way as privileges, and insofar as they are capable of ceasing in those ways. In addition, dispensa­ tions cease with the cessation of the motive cause for which they were granted. This applies to dispensations which admit of recurrent application (quae tractum habent successivum), e.g., dispensations from fast, from the canonical hours, etc. But dispensations which take full effect with one application, e.g., dispensations from ir­ 122 PRIVILEGES AND DISPENSATIONS regularities, marriage impediments, etc., do not cease with the cessation of the motive offered in the petition. And so, a marriage dispensation granted in order to legitimitize offspring which has been born, will not cease to be valid should the infant die before the parents are married. ON EPIKEIA. By epikeia is meant a Ixtiigu interpretation of the mind of the lawgiver to the effect that he does not intend the law to bind under the present difficult circumstances, e. g., to abandon a person who is seriously ill in order to attend Sunday Mass. Although both epikeia and dispensation differ in this respect that the first interprets while the second suspends the law, th:y agree, on the other hand, in this that both rest upon the principle of natural equity. For equity has been defined to mean: the correction of that wherein the law by reason of its universality is found deficient. In the use of epikeia three rules will be found helpful: 1) Epikeia is restricted in its effects to the interna) forum, namely, to render licit what would otherwise be sinful ; but its effects cannot reach the external forum, e. g., to remove a diriment marriage impediment. 2) Epikeia cannot be invoked if the superior with dispensing faculties can Ik approached without grave inconvenience. The reason is that epikeia is an extraordinary, while a dispensation is an ordinary' method of seeking relief. But it is unlawful to have recourse to extraordinary means when ordinary means are at hand. J) Epikeia can neither be invoked if a declaration of exemption can be had from the confessor. The reason is that human nature inclines us too readily to see exemptions where none in reality exist. The licitness of epikeia as far as church law is concerned is based on c. 2205 of the Code. Μ ΟΝ PERSONS Bk. II is entitled De Personis. It is concerned with defining the rights, powers and duties of those who hold membership in the Church. From this viewpoint all persons in the Church arc conveniently divided into three classes: clerics, religious and laymen, The laity have those rights and duties which result to them from baptism, and these are common likewise to religious and clerics. Religious as such have by reason of their vows certain duties dis­ tinct from those of the laity and the clergy, as also certain privileges which neither laymen nor clerics enjoy. Clerics as such have certain powers and rights accruing to them from ordination and ecclesiasti­ cal offices, and likewise corresponding duties which are not found to belong to either religious or laymen. Hence, the Code divides Bk. II into three parts: Part I, On Clerics; Part II On Religious; Part III, On the Laity. But certain very general legal principles apply to all classes of persons in the Church, and these we shall review in the following preliminary chapter before passing on to discuss persons in particular. 123 H Preliminary Chapter PERSONS IN GENERAL In three separate articles we shall consider: 1) the general principles applicable only to physical ecclesiastical persons; 2) the general principles applicable only to moral ecclesiastical persons; 3) the general principles common both to physical and moral ecclesiastical persons. ART. I. General Principles Applicable to Physical Ecclesiastical Persons §1. Physical Ecclesiastical Person Defined (c. 87) In the philosophical sense a person is an individual endowed with reason and free will. In the legal sense by a person we mean a subject of rights and duties. The two terms coincide of necessity when there is question of natural rights and duties, for by birth every natural person is also a legal person so far as the rights, and duties resulting from the law of nature are concerned. But a natural person is not necessarily a legal person in either civil or ecclesiastical law. More than birth is required to enjoy civil rights, namely, res­ idence in the country; and if there is question of political rights, c. g., the right to vote, to hold public offices, one must usually be a citizen of the country. Likewise in canon law, not every natural person is a legal person, or the subject of rights and duties in the Church. One becomes a member of the Church (a legal person) only through baptism. This is by the will of Christ. Baptism was intended as the sacrament of supernatural birth. One must first be supernaturally born before he can live and be nourished supernaturally through supernatural means (grace through the sacraments and prayer) which Christ placed at the disposal of His Church. 124 PERSONS IN GENERAL 125 But membership in the Church can be of a restricted nature. That is to say, a person because baptised can be a member as far as duties are concerned, but may be deprived of rights and privileges accruing from membership, e. g., the right to the sacraments, to church burial, etc. This happens with all excommunicates. §2. Age (c. 88-89) All persons are either majors or minors. A major is a person who has completed his twenty-first year of age; all under this age are minors. Major persons enjoy the full exercise of all rights which church members possess. But minors in the exercise of ecclesiastical rights are subject to the authority of their parents or guardians, e. g., they cannot acquire a domicile of their own, but follow that of their parents or guardians. The law restricting the free exercise of their rights by minors is designed to safeguard them because of their immature judgment, especially in the matter of property· rights. But in some matters minors are free of parental control. Thus, they are at liberty to choose their own state of life. They may, without parental consent, marry, or take religious vows, or receive sacred ordination, and all these acts will be valid, but parental consent is usually necessary for licitness. Likewise, the same minors could, without parental approval, attack by court action the validity of their marriage, religious vows, or sacred orders. In questions that concern property­ rights, it may be noted, that church law generally refers us to the civil law on contracts, so that minors will be governed mostly by the civil law on this point. Minors arc either puberes or impuberes, i. e., they have, or have not, attained the age of manhood or womanhood. In the case of girls the age of puberty is the completed twelfth year; for boys it is the completed fourteenth year of age. Under these respective ages children arc considered impuberes. The distinction carries juridical effects in four cases: 1) im­ puberes cannot vote in ecclesiastical elections; 2) they' cannot choose their own church or grave for burial ; 3) they cannot testify in court; 4) they are free from latae sententiae penalties. All persons arc either infants or adults. Anyone who has not completed his seventh year of age is called an infant. In canon law the habitually insane are considered infants, regardless of their real age. Persons over seven years of age arc called adults. The distine- 126 PERSONS IN GENERAL tion between infants and adults finds frequent application in canon law. Thus, infants are not held to the law of abstinence, to the observance of holydays, to instructions before baptism, etc. Even should a child show signs of intelligence and reason before his completed seventh .year, he must still be regarded an infant. The object of this ruling is to minimize scruples on the part of parents, confessors, and others who may be charged with the child’s education, or religious upbringing. §3. Residence (c. 90-95) Where a person is born, called the domicilium originis, usually matters little in canon law, except in the case of candidates to the priesthood, or the religious life. For if a man is ordained for the diocese of his origin, he need not take an oath to serve the diocese forever. Before a man is permitted to take religious vows, he will find it necessary to secure testimonial letters from the bishop of the diocese where he was born to certify to his freedom, especially from the bonds of marriage. It is, on the other hand, often vital to know and determine one’s present residence. First, because as long as one is present in the place of his domicile or quasi-domicile he is held to the particular laws of his residence, whereas persons traveling outside of their diocese arc bound, generally speaking, neither to the particular laws of their home diocese, nor to those of the diocese where they are visiting. Secondly, because one’s proper pastor and Ordinary is he in whose territory one has a domicile or quasi-domicile. And so, whenever the law speaks of proper pastor, or proper Ordinary one must keep in mind domicile and quasi-domicile. When it is said, e. g., that only the proper pastor can licitly assist at marriage, by this is meant that a pastor can lawfully assist at the marriage only of his subjects, i. e., of those who in his parish have cither a domicile or quasi-domicile. And conversely, since rights and duties arc correlative, persons must be married by their proper pastor for licitness, i. c., by that pastor in whose parish they have either a domicile or quasi-domicile. The same rulings hold in determining the proper pastor for baptism, extreme unction, etc., or for deter­ mining the proper Ordinary to issue dispensations, to ordain, to judge cases by way of a trial, etc. In connection with the question of residence the following terminology occurs: PERSONS IN GENERAL 127 1) A person is an incola in the place of his domicile, (a resident) ; 2) A person is called an advena in the place of his quasidomicile, (quasi-resident) ; 3) A peregrinus is a person who for the present is found out­ side of his domicile and quasi-domicile, supposing he still retains one or the other in the sense that he intends to return home, (a visitor, transient) ; 4) A vagus is a person who has nowhere a domicile or quasidomicile, (a wanderer). A voluntary domicile is acquired in either one of two ways: 1 )by arrival in a place with the intention of remaining there forever, barring unforeseen contingencies; 2) after having actually lived in a place for the space of ten years although the intention of remaining in the place indefinitely had never been entertained. In the first case domicile is acquired on the first day of arrival; in the second case only after the lapse of ten years. A voluntary quasi-domicile is likewise acquired in either one of two ways: 1) by arrival in a place with the intention of remaining there the greater part of the year (six months) barring unforeseen contingencies; 2) by actually having lived in the place for the greater part of the year. In the first case quasi-domicile is acquired immedi­ ately upon arrival ; in the second case only after the lapse of six months. By place in the above two paragraphs must be understood a parish, quasi-parish, diocese, vicariate and prefecture Apostolic. When one has established his residence in a parish, it is called a parochial domicile or quasi-domicile. Sometimes a person moves constantly from one parish to another but within the same diocese. In this case he can still have a diocesan domicile or quasi-domicile. A voluntary domicile or quasi-domicile is lost by leaving the place with the intention of not returning. And just as the intention of establishing a residence may be ascertained from the statement of the party or witnesses, or from presumptions, e. g., by setting up a business, obtaining steady employment, buying or renting a home, so too, the intention of not returning may be gathered from the statement of the party or witnesses, or from presumptions, e. g., if one sells his business, home, etc., and departs. Purely factual or material departure docs not involve loss of residence. The depart­ ure must be formal, i. e., coupled with the intention of not returning. For which reason it is possible for a person to have two or more domiciles at one and the same time, e. g., because he lives so many 128 PERSONS IN GENERAL months a year at this home, so many months at that home etc. In the same way one may have a domicile and quasi-domicile in different places, c. g., in the case of students. If a person has several domiciles, or a domicile and a quasi-domicile, he may also have several proper pastors and Ordinaries. But their jurisdiction does not conflict, since the principle datur locus praeventioni applies, and it is the subject himself as a rule who chooses among the several pastors or Ordinaries and thus determines the praeventio. 'I'he following persons have a legal or necessary domicile: 1 ) .Married women retain the domicile of their husbands as long as they have not secured a separation a toro et mensa from the proper ecclesiastical authorities. 2) Minor children retain the domicile of their parents or guardians. 3) The insane have no domicile save that of their curators or guardians. 4) Religious have a legal domicile in the place where the house to which they have been assigned de familia is situated. 5) Fagi are subject to the pastor and the Ordinary in whose parish or diocese they happen to be sojourning. Those who have only a diocesan domicile or quasi-domicile are subject to the pastor in whose parish they are now staying. But a married woman can acquire a quasi-domicile of her own. If she is lawfully separated from her husband by ecclesiastical authority, she may also acquire a proper domicile. This is important in marriage trials to determine the competent court. A minor can acquire a quasi-domicile of his own. This is important in determining the proper pastor to assist at his marriage. Unlike voluntary domiciles, legal domiciles cannot be lost by mere departure from the place with the intention of not returning. §4. Sex In canon law women arc debarred from holy orders, ecclesiasti­ cal offices, and jurisdiction. Married women, moreover, retain the domiciles of their husbands, as just explained. In all other respects sex is no factor limiting legal capacity or liability. Thus in purely spiritual matters canon law proclaims the equality of the sexes. Women have as much right to salvation as men, and to the means of salvation, e. g., to the sacraments, to assistance at divine services, to the religious life, etc. PERSONS IN GENERAL 129 §5. Consanguinity and Affinity (c. 96-97) These relationships modify legal capacity only in a few cases: 1 ) near relatives by blood or marriage cannot contract marriage between themselves (c. 1076. 1077) ; 2) superiors may not confer ecclesiastical offices upon their relatives under certain circumstances (c. 157; 3) relatives are debarred from testifying in court except in marriage cases (c. 1757, S. 3, n. 3) ; 4) exception can be taken to the officers of the court on the ground of their relationship with one of the litigating parties (c. 1613). For further discussion, see р. 478. §6. Rite (c. 98) Legal liability is greatly affected by the rite to which one belongs. We have seen under canon 1 that Orientals are not bound by the laws of the Code as a general rule. The law is that a person belongs to that rite in which he was legitimately baptised. Moreover, a person must be baptised in the rite of his parents. If one parent belongs to the Latin, and the other to the Oriental (Uniate) rite, the child is to be baptised in the rite of the father. If the father is a non-Catholic, the rite of the mother prevails. Sometimes a person is not baptised in the rite determined by the law just quoted. In that case he belongs, nevertheless, to the rite in which he should have been baptised, and not to the rite in which he was de facto baptised. In three cases is this particularly verified: 1 ) if a person was fraudulently baptised by a minister of a strange rite; 2) if he was baptised by a minister of a strange rite in a case of necessity, or even at the mere wish of the parents (Code Comm. Oct. 16, 1919; Acta XI, 478) ; 3) if by Apostolic dispensa­ tion a person was allowed to receive baptism in a strange rite without being enrolled in that rite. No one may without Apostolic induit change his rite. But a married woman may during the lifetime of her husband transfer to his rite, and she may after his death return to her own rite. A change of rite cannot be effected through prescription, с. g., by the practise of receiving communion in a strange rite, no matter how much prolonged. 130 PERSONS IN GENERAL ART. II. General Principles Applicable to Moral Ecclesiastical Persons There are in the Church besides persons or corporations. We shall : 2) classify moral persons; 3) explain 4) determine how a moral person is physical persons also moral 1 ) define a moral person ; their method of operating; dissolved. §1. Moral Person Defined A moral person is a juridical entity, constituted by public authority, subsisting independently of the persons who compose it, and endowed with the capacity of acquiring and exercising rights in the corporate name. The rights in question, in the case of an ecclesiastical moral person, may range from that of acquiring and administering property to that of gaining induits and other privileges, electing and presenting to ecclesiastical offices, exercising deliberative jurisdiction, enjoying precedence, suing in the ecclesiastical court, etc. (c. 99). To be such, a moral person in the Church must have obtained a charter of incorporation either in virtue of the law, or by decree of the competent ecclesiastical superior. In order that an entity may be acknowledged as a moral person by the law it is not required that the law expressly refer to the corporation as a moral person. Implicit recognition suffices. This is given when the law grants powers and rights and there is no mode by which those rights and powers may be exercised without the institution acting as a moral person. Such implicit charter of incorporation is conferred by the Code upon a diocese, a parish, a cathedral chapter, etc. Where the law itself docs not confer corporate personality, this must be obtained from the competent ecclesiastical superior. The decree must make it clear that corporate personality is being con­ ferred. If the institution or society is merely commended and praised, it remains but a collective person, or partnership, so far as the Church is concerned, even though it be a corporation under the civil law, e.g., the Knights of Columbus, the St. Vincent de Paul Society, (c. 100, §1). No charter of incorporation will be issued unless: 1 ) the society pursues a charitable or religious end, otherwise the State alone is competent to incorporate; 2) at least three persons constitute the PERSONS IN GENERAL 131 membership, otherwise action by majority vote is impossible (c. 100, §1,2). It should be noted, that although ecclesiastical moral persons ought to be acknowledged as such also by the State in virtue of the sovereignty of the Church in matters spiritual, yet where this sovereignty is disclaimed as in most modern States, it will be neces­ sary, to protect its temporal interests, that the ecclesiastical corpora­ tion secure from the State a civil charter of incorporation likewise. §2. Division of Moral Persons By reason of origin moral ecclesiastical persons are either of divine or ecclesiastical law. The Church universal, and the Apos­ tolic See arc moral persons by divine law. The Church universal was founded by Jesus Christ, our Lord, as a sovereign society endowed with all powers necessary to achieve her divine mission independently of the civil authorities, and therefore self-subsisting. The Apostolic See, if by this we understand the papal office exclusive of the Roman Curia, was likewise established directly by Christ Himself, when He conferred the plenitude of power upon St. Peter, the Prince of the Apostles, power which was intended to pass down to his lawful successors in perpetuity. All other moral persons in the Church arc such by reason of ecclesiastical law alone, e. g., this or that diocese, the Roman Curia, religious organizations, parishes, hospitals, etc. (c. 100, §1). By reason of internal constitution we have collegiate and non· collegiate moral persons. A collegiate moral person (corporate body) is composed of physical persons, c. g., a confraternity, a religious Order. A non-collegiate moral person (non-corporate body) is composed of a definite amount of goods or property destined for a religious or charitable purpose, e. g., a school, college, seminary, university, hospital, orphanage, hospice, church, benefice, etc. (c. 99). §3. Modes of Operation (c. 101) The acts of a non-collegiate moral person, e. g., a seminary, hospital, etc., are governed principally by its statutes. Where the statutes are silent, the common law should be consulted. As a rule there is a board of trustees with a president, secretary, treasurer, etc., to administer the property. Sometimes there is but one administrator, c. g., the clerical incumbent of a benefice, although for civil effects a board of trustees may have to be set up to administer the goods. 132 PERSONS IN GENERAL Thus in many States the administration of the temporalities of a parish must be committed to a board consisting of the bishop, the vicar-general, the pastor and the two lay trustees of the parish. If this is in accordance with the civil charter of incorporation, it must be observed so long as the temporalities of a parish arc to be protected by the civil courts. Collegiate moral persons arc sometimes empowered to act through one officer or superior. Thus the bishop, the provincial, the local religious superior, etc., can proceed alone in certain matters defined by common or particular law. At other times the board, or council, consisting of a few select officers, must be convoked. At other times again, but seldom, the entire organization must vote on a resolution. When a corporate body must act collectively, c. g., the provin­ cial definitorium, the body of diocesan consultors, etc., the following rules must be observed, provided particular statutes do not enlarge the obligation, for in that case the particular law (e. g., the constitu­ tions, of the religion), where this is praeter jus commune, prevails, as where, e. g., an absolute majority is required in every ballot for election. Otherwise: 1 ) In the first two ballots an absolute majority of votes is required. An absolute majority is anything over half the totality of valid votes cast. Which votes arc to be considered valid or invalid wc shall see. 2) If no absolute majority is reached in the first two ballots, a relative majority suffices for a decision in the third ballot. A rela­ tive majority is the greatest number of votes given to any one candi­ date or measure, even though that sum does not exceed half of all the votes cast. Thus, if of ten votes cast in the third ballot, 4 were given to A, 3 to B, and 3 to C, the election would go to A. 3) If in the third ballot a tie results in the sense that an equal relative majority is given to two or more candidates, to two or more measures, then if there is question of voting on measures or resolutions, the presiding officer must break the tie by casting an additional vote. If there is question of elections, and the president does not choose to exercise his prerogative, e. g., to avoid hard feel­ ings, the law itself decides the issue in this way: the senior of those who have received equal votes is considered elected. By seniority here is meant in the case of clerics, seniority in ordination; in the case of religious, seniority in first profession; in the case of laymen seniority in age. 4) When the resolution proposed affects all the voters as PERSONS IN GENERAL 133 individuals and not merely as members of the corporation, unanimity is required for the adoption of the measure. The classical illustration is that of substituting election with compromise. In practically all other cases it is extremely difficult to determine whether the rights of the voters as individuals arc being affected by the proposed measure or not. The doubt remaining, the general rule concerning rhe suffi­ ciency of a majority vote should prevail. §4. Dissolution of Moral Persons (c. 102) Moral persons are created to secure perpetual succession, i. e., to prevent the dissolution of the society upon the first death of a member, as would be the case in a mere partnership. Therefore, moral persons arc by their nature perpetual.* Moral persons cannot be dissolved even at the will of all the members. They can be dissolved only by decree of the competent authority which created them, or by his successor in office. Like­ wise, they are dissolved upon the death of all the members, provided the corporation fails to revive within 100 years. ART. III. General Principles Applicable to Both Physical and Moral Persons §1. Force, Fear, Fraud and Error of Legal Acts (c. 103-104) as Determinants Force—Acts done through physical compulsion or force (vis physica) of such nature that the force could not he resisted are invalid by their very nature. Physical compulsion always implies bodily restraint or movement in the passive agent caused by the active agent, c. g., imprisonment. Physical and moral force are often confused, but they are two things entirely distinct. The body of the passive agent who suffers moral force need not in any way be touched or moved, as we shall sec in the following section. Fear—Fear (metus) in the passive agent is the result of moral force (vis moralis) exercised by the active agent. The two terms are correlative, and related to each other as effect and cause. Moral 134 PERSONS IN GENERAL force moves the will, not the body. This it does indirectly in the form of threats, blows, etc. Acts done through fear are valid unless the fear was so grave as to deprive a person momentarily of the use of reason. Saving this extreme case, the law presumes that knowledge and intention suffi­ cient to perform a human act arc compatible with the state of ordinary grave fear. At the most, one’s liberty has been impaired. Because of the impairment of his liberty, the law, to redress the injury done to the passive agent of grave fear, compensates him either by declaring the act invalid ab initio, or by granting the injured party the right to a rescissory action. When done under grave fear the following acts are ipso jure invalid: marriage, the resignation of an office or benefice, a vote cast in an election, reception of orders, admission to the novitiate, re­ ligious profession, private vows, assistance at marriage, the remission of ecclesiastical penalties. In all other cases the injured party can ask that the act be rescinded, i. e., declared void and of no effect. Until the court rules on the question, the act remains valid. But the fear must have been grave. Whether it is absolutely grave or only relatively grave is immaterial. Fear is absolutely grave when it can overcome a steadfast man, e. g., the fear of death, loss of limb, imprisonment, loss of worldly fortune, etc. It is relatively grave if it is sufficient to overcome the mind of this or that individual in view of his weak constitution, or for other reasons. Nothing is more difficult to prove than the presence of relatively grave fear in marriage annulment suits. The fear must also have been unjustly inflicted. Fear of death occasioned by a grave illness, by a shipwreck, etc., cannot be said to have been unjustly inflicted ; and a vow, e. g., pronounced under these circumstances would remain valid. Whenever the virtue of justice is violated by him who threatens the evil, the resultant fear may be said to have been unjustly inflicted, e. g., where the father of a seduced girl threatens the young man with death unless he takes her in marriage. But if the father threatens a lawsuit, and under the influence of this threat the man contracts marriage, the marriage will be valid, since the father had a right to bring suit. Fraud—Fraud {dolus) is the deliberate misrepresentation of some fact in virtue of which another acts through error. If the resultant error is substantial, the act is invalid ab initio by reason of error. If the error is accidental, the law can make the act rescindable at PERSONS IN GENERAL 135 the petition of the defrauded party. But in four cases accidental error resulting from fraud invalidates the act ab initio: 1) a vote cast in an election; 2) resignation of an ecclesiastical office or benefice; 3) admission to the novitiate; 4) the making of religious profession. Error—Error is a faulty judgment or conclusion, a mistake. Theoretically, it differs from ignorance which is habitual lack of knowledge, and from inadvertance or forgetfulness which is momen­ tary lack of knowledge. But in practise, and as far as juridical effects arc concerned, error, ignorance, inadvertance and forgetful­ ness are governed by the same legal principles, namely: Substantial error always invalidates an act placed under the influence thereof. Accidental error resulting from fraud likewise, invalidates an act in the four cases enumerated above. Outside of these four cases accidental error does not invalidate an act when it results from fraud, but may give cause for a rescissory action, or, if the plaintiff prefers, he may simply bring suit to recover damages leaving the contract intact. Aside from fraud, error in itself, when only accidental, will give cause for a rescissory action if one’s loss exceeds by half the real value of the thing bargained for (c. 1684, §2). Substantial error is present : 1 ) when it concerns the substance of the act; 2) when it amounts to a conditio sine qua non though objectively affecting only the accidentals, but because of the conditio sine qua non in the mind of the agent, the objective accidental quality becomes subjectively a substantial one. These are rather vague principles, and the ecclesiastical judge will do well to study the civil law doctrine on this point since in the matter of financial contracts canon law adopts the civil law generally speaking. In many cases, where the defendant is a cleric, the ecclesiastical authorities will permit suits involving contracts to be taken to the civil courts. But since the marriage contract is always reserved exclusively to the courts of the Church, the doctrine of error in connection with marriage has been more thoroughly developed, as we shall sec. Note—Coercion (tw), fear, fraud, error, ignorance, inadvert­ ence and forgetfulness can affect not only the validity but also the licitncss of acts. How far these various factors excuse from sin and exempt one from penalties decreed against violations of the law, must be studied in the light of the principles found on pages 670 ff., 681. §2. Consent and Advice (c. 105) On the theory that two heads are better than one the law requires that in certain matters of grave importance, or where the 136 PERSONS IX GENERAL rights of third parties arc at stake, the superior may not proceed without consulting others, and occasionally without obtaining their consent. In which cases advice, and in which cases consent, must be obtained by the superior cannot be explained at this time; the Code must be perused throughout. Thus, e.g., a bishop must consult the synodal judges when transferring a reluctant pastor; a major reli­ gious superior must have the consent of his chapter or council to admit a novice to profession, etc. Whenever the law states that the superior needs the content of others, it is to be understood that such consent is needed for the validity of his subsequent act; i.e., the superior in this case acts invalidly should he proceed without the consent of those whom the law designates. If the law requires only that the superior seek the advice of others, e. g., de consilio consultorum, audito capitulo, parocho, etc., it suffices for validity that these persons be consulted. The superior need not follow their advice. But he would act imprudently to proceed against the wishes and opinion of a very large majority. When several are to be consulted, or their consent is to be obtained, it is the desire of the lawgiver that these persons be called together, so that the whole matter can be discussed by all in the open, before the question is voted upon. If only one or the other need be consulted, this can be done by letter, unless particular law rules otherwise. §3. Order of Precedence (c. 106) In every society there arc those who by reason of greater authority, dignity, age, etc., deserve more deference. This is mani­ fested externally in the Church, especially in public functions, assemblies, etc., by what is known as the right of precedence. The following rules govern precedence. They apply both to physical and moral persons. They are intended to preserve public order, and to avoid confusion. They arc privileges in a sense, but privileges given by way of law, which the individual is not at liberty to renounce, no matter how democratically inclined he may be in other matters. Representation—This is the first criterion to determine precedence. He who represents another occupies his place of honor. But where several prelates of the same rank are present, those who are present in a vicarious capacity yield precedence to those who are present in person. PERSONS IN GENERAL 137 Authority—Whoever exercises authority over another takes precedence over him, e. g., a residential bishop in respect to his priests, a provincial in respect to the religious subjects of his province, a local superior with respect to the subjects of his house, etc. Rank—Among several persons none of whom has authority over the other, those of higher rank (office, dignity) precede those of lower rank. Thus, e. g., an archbishop precedes his suffragans (office), a titular bishop precedes all priests (dignity). Order—Among those of the same rank precedence is given to those of higher orders. Thus, e.g., in a public procession priests precede deacons, and deacons precede subdeacons. Priority—Of those belonging to the same rank and order, they precede who were first promoted to the rank. In the case of bishops promotion to the episcopal rank dates from the day of nomination by the Holy Sec, not from the day of consecration or installment in office. This same rule applies in the case of episcopal transfer to another ecclesiastical province; precedence not being determined from the date of transfer (Code Comm. Nov. 10, 1925; Acta XVII, 582). Seniority—If promotion to the same rank occurred on the same day, he precedes who was first promoted to the order. Rite—Difference of rite is no determinant of precedence. Among moral persons precedence is governed by particular rulings found in various parts of the Code, cfr. c. 491 and c. 701. If two or more corporations of the same rank, grade, etc., happen to be present, e.g., Dominicans and Franciscans, those who have been established in the locality the longest take precedence. Should contentions arise, the local Ordinary has the final word, but recourse in devolutive may be taken later against his decree. Among members of the same moral body, precedence is determined by the statutes of the corporation, e. g., the constitutions of a religious organization. rne m 6« ON CLERICS Section One ON CLERICS IN GENERAL In Section I we shall treat of clerics in general before passing on to consider in Section II the law on clerics in particular. That is to say, wc shall first study those principles which apply to all clerics irrespective of the rank or office the}' may hold in the Church. We shall divide the present section into four chapters, and shall discuss: 1) the clerical state in general; 2) ecclesiastical offices; 3) ordinary and delegated power; 4) the privileges and obligations common to all clerics. 138 Chapter I THE CLERICAL STATE IN GENERAL In five articles wc shall consider: 1) the definition of a cleric; 2) the nature of the power of orders and the power of jurisdiction; 3) the hierarchy of orders and the hierarchy of jurisdiction; 4) how entrance into the sacred hierarchy is effected; 5) the principal systems of church government in non-Catholic sects. ART. I. Cleric Defined (c. 108, §1.) Cleric (clericus) is derived from the Greek kleros. 'This word corresponds to the Latin sors, and signifies that which is chosen from among many and set apart. Hence, from the earliest times those who were chosen from among the faithful to exercise the sacred ministry in the Church were called clerics. All persons not so chosen were called laics, or laymen, from the Greek laos, which cor­ responds to the Latin plebs, i. e., the populace. In general then, clerics are those members of the Church who occupy positions of preeminence cither by reason of the power of orders or the power of jurisdiction. In other words, the clergy arc they who teach, the laity are they who are taught ; the clergy sanctify, the laity are sanctified ; the clergy rule, the laity obey. However, even those who arc merely preparing for the sacred ministry, and who have as yet received no power of orders or of jurisdiction are classed as clerics provided their admission as candi­ dates has been confirmed by the rite known as the first tonsure. In the very technical sense, therefore a cleric is a man who has been ad­ mitted tn the sacred ministry at least in virtue of the first tonsure, (c. 108. §1). The tonsure, it should be noted, is not an order in itself. It is rather a rite preliminary to orders much as betrothals are a prelim­ 139 HO THE CLERICAL STATE inary to marriage. As a sacred rite it was not introduced into the Church before the eighth century. First tonsure is conferred by the bishop, and consists in a partial shearing of the hair from the head of the candidate for holy orders. Two reasons probably underlie this ceremony: 1) juridically, the candidate now appears publicly before the Church as the subject of the common privileges and obli­ gations of the clergy; 2) mystically, the aspirant is reminded of his duty to cultivate humility and to forsake the superfluous things of this life. The first tonsure, we said, is conferred by the bishop. The tonsure must be privately renewed from time to time in virtue of the common law which makes the habitual wearing of the tonsure obligatory upon all clerics. But in virtue of contrary custom the clergy of this country do not wear the canonical tonsure. ART. II. Power of Orders and of Jurisdiction That which substantially distinguishes clerics from laymen is the two-fold power of orders and of jurisdiction. The power of orders is that in virtue of which Mass is offered, the sacraments and sacramentals are administered, and public worship is conducted. The power of jurisdiction is the same as the power to govern and rule. To celebrate Mass, e.g., requires the power of orders; to legislate concerning the time, place and manner of cele­ brating Mass requires the power of jurisdiction. More specifically, the two powers may be distinguished as fol­ lows: 1) by reason of their object', the power of orders refers di­ rectly to the sanctification of souls; jurisdiction refers directly to the maintenance of public order in the Church; 2) by reason of their source, the power of orders is received in virtue of ordination; the power of jurisdiction comes to one through an ecclesiastical office, or by an act of delegation; 3) by reason of extent', the power of orders is the same quantitatively in all clerics who have received the order in question ; the power of jurisdiction may be limited as to territory, persons, subject matter, etc.; 4) by reason of duration', the power of orders is never lost, and acts placed in virtue of such power arc always valid even though performed by excommunicated and sus­ pended clerics; jurisdiction, on the other hand, may be lost with loss of office, recall of delegation, suspension, etc. THE CLERICAL STATE 141 ART. III. Nature of the Sacred Hierarchy (c. 108, §2, 3) Not all clerics share the same amount of power, whether of orders or of jurisdiction, but there is a sacred hierarchy among them in virtue of which some clerics are subordinate to others. The sacred hierarchy (hiera sacred, and arche power, or ruling authority) is the totality of the sacred powers vested in the Church but as attaching to different orders and offices in varying degrees. The sacred hierarchy of orders consists of eight grades as fol­ lows: 1) the episcopate (which some do not consider as an order distinct from the priesthood, but merely as the enlargement and plenitude of the priestly powers) ; 2) the priesthood; 3) the diacon* ate; 4) the subdiaconate; 5, 6, 7, and 8) the orders of acolyte, lector, exorcist, and doorkeeper. St. 'Thomas explains how these various orders relate to the Eucharist : 1 ) the priest consecrates the Euchar­ ist; 2) the deacon dispenses the same; 3) the subdeacon prepares the matter of the sacrament in sacred vessels; 4) the acolyte prepares the same in non-sacred vessels; 5) the lector instructs those preparing to communicate; 6) tile exorcist purifies those who are tempted by satan from receiving the Eucharist; 7) the doorkeeper bars entrance of unbelievers to the Church where the Eucharist is consecrated. The sacred hierarchy of juriediefion consists of the papal office, the subordinate episcopate, and all ecclesiastical offices which share in the jurisdiction of the Pope or the bishops. For it must be noted that while the papacy and the subordinate episcopate arc of divine origin, yet as the Church grew in membership and spread into many lands, its government necessarily became more complex. It became necessary for the Pope and the bishops to call other clerics to assist them in ruling the faithful by assigning to such clerics permanent duties and powers, thus creating ecclesiastical offices of an in­ ferior nature. Thus, e.g., the Pope is aided in the government of the universal Church by the Cardinals, the Roman Curia, Vicars and Prefects Apostolic, papal legates, archbishops, etc. The bishop in turn has his vicar-general, official, chancellor, rural deans, etc. The jurisdiction of all clerics other than the Pope and residential bishops, must be considered a vicarious jurisdiction; they receive their ruling power not directly from God, hut they exercise it in the name of the Pope or the bishop whom they represent. Having described the nature of the sacred hierarchy we are bet­ 1+2 THE CLERICAL STATE ter prepared to understand how the clerical state is of divine origin. From the viewpoint of the power of orders, bishops, priests and deacons constitute a clerical state by divine law; while subdeacons, and clerics in minor orders constitute a clerical state by ecclesiastical law alone. The reason is that the episcopate, the priesthood and the diaconate are sacred orders instituted by Christ; whereas subdeacon­ ship (in all probability), and minor orders certainly have been in­ stituted by the Church. Likewise, from the viewpoint of jurisdiction the papacy and the subordinate episcopacy constitute a clerical state by divine law; whereas all other offices in the Church belong to clerics only in virtue of ecclesiastical law. Thus, nothing would for­ bid vesting a layman with ecclesiastical jurisdiction, e.g., with the office of ecclesiastical judge. As a matter of fact, however, it is more becoming that ruling authority be conferred upon those who already are superior to laymen by reason of the power of orders. ART. IV Entrance into the Sacred Hierarchy (c. 109) Contrary to the doctrine of the so-called Reformers, Catholic theology teaches that no man can perform acts of the sacred ministry referring to the celebration of Mass and the administration of the sacraments unless he has been first empowered to do so through the grace received in the sacrament of holy orders. The call of the people is not sufficient, but one enters the hierarchy of orders through ordi­ nation. This is a requisite of divine law when there is question of celebrating Mass, of consecrating or administering most sacraments. It is of ecclesiastical law only when there is question of placing acts reserved to clerics in minor orders, so that custom can tolerate that such functions, e.g., that of acolyte (server) be discharged by laymen. Entrance into the hierarchy of jurisdiction is effected only through canonical mission. By this is meant the conferment of jurisdiction by the competent ecclesiastical authority. It was when they were sent (missio, mittere) by the Saviour to baptise and to preach the Gospel that the Apostles received their jurisdiction in the Church. So today, clerics must figuratively be sent by those who are the direct successors of the Apostles; bishops being sent, i.e., appointed to their sees by the Pope; the vicar-general, diocesan con- THE CLERICAL STATE 14} suitors, pastors, etc., by the bishop. Therefore, neither the consent or call of the people, or of the civil ruler is required, much less suffices, to confer ecclesiastical jurisdiction. If at one time the laity participated in ecclesiastical elections, this was in virtue of toleration or privilege on the part of the ecclesiastical authorities. If even today some secular rulers have a voice in the choice of bishops, this is in virtue of privilege granted by the Pontiff, and not in virtue of any original inherent right in the civil ruler himself. The Pope alone needs no canonical mission to obtain jurisdic­ tion proper to his office. Or rather, he receives his mission directly from God once a canonical election has been conducted by the cardinals, and the office has been accepted. It is obvious that the cardinals cannot grant the Pope his authority, namely jurisdiction in the universal Church, nor infallibility, prerogatives which they do not themselves possess. ART. V. Non-Catholic Systems of Church Government We may distinguish three such general systems: the episcopal, the presbyteral and the congregational. Episcopalianum—Considered as a form of church government, and not as designating a peculiar set of doctrines proper to any one denomination, episcopalianism recognizes the supremacy of bishops over priests as of divine right. The system is found among the Orthodox Orientals and the Anglicans. Like the Catholics, the Orthodox Orientals and the Anglicans believe in Apostolic succession. However, they deny the papal primacy of jurisdiction, and at most accord the Pope a primacy of honor due to the antiquity of the Roman See. Supreme authority in the universal Church, which to them comprises the Roman, the Orthodox and Anglican branches, is vested only in ecumenical coun­ cils. They also deny papal infallibility. The intervention of the civil ruler is permitted in the appoint­ ment of bishops, and this the ruler does either directly or indirectly through a synod controlled by himself. If Christ conferred all ruling authority in the Church on the Apostles, as is evident from the Gospels, and if nowhere we find Him granting the least share thereof to Caesar, it seems incomprehensible how the Orthodox and Anglicans who hold to the episcopal system, can accord the civil ruler the above right to appointments as a right inherent in his office. 144 THE CLERICAL STATE Presbyterianism—In his effort to give the Protestants an efficient pian of ecclesiastical government after their rupture with Rome, Calvin excogitated a system which he considered more in harmony with that obtaining in the primitive Church. As he saw it, there was no real, but only a nominal difference between the efiiscofii and the presbytères of those days. Both names designated the ciders of the particular churches. The elders as a body supervised all the affairs of the congregation. '1’hese presbytères were not priests as we understand them; they were only laymen. Ordained clerics did not exist in the Catholic sense of the word. 'The laying on of hands, of which we read so much in the literature of those days, was not a sacrament, and conferred no peculiar spiritual powers. In a very short time, moreover, the more ambitious among the presbytères suc­ ceeded in gaining authority over the other elders of the congregation, and these came to be called episcopi exclusively. The episcopal system, therefore, according to them, is not of divine institution, but owes its origin to human intrigue. In the presbytcral system as proposed by Calvin, and as based upon the preconceptions described, all authority is vested in repre­ sentative bodies, not in individuals, for so it was in the primitive congregations (Ecclesiae), where the body of ciders held all author­ ity. There are lay ciders and ordained elders; the former rule, the latter both teach and rule (ministers). The lay ciders, together with the pastor as presiding officer, form the session which supervises the affairs of the congregation. The deacons attend to the temporalities. All officers are chosen by the session. Above the session we find the presbytery exercising jurisdiction over a number of congregations within a given territory. Higher than the presbytery is the synod which governs a number of presbyteries. Still higher stands the general assembly as the court of last resort in the whole Church (sect). 'The term presbyterianism also designates the peculiar doctrines of certain sects, e. g., those of the Church of Scotland. Here we understand the term as indicative of a form of government adopted by many sects no matter how variant from one another they may be in point of doctrine. As a system of church polity presbyterianism is found among practically all those Churches which trace their doctrine to one or the other of the so-called Reformers, e. g., the Lutherans of Germany, the Dutch Reformed, the Presbyterians of Scotland and Northern Ireland, etc. Since these sects reject the sacramental system and the Mass, there is no need of holy orders. At most they admit baptism and the Lord’s Supper, and while these functions are as a matter of fact THE CLERICAL STA TE 145 reserved to the minister, any-layman could likewise perform them on the theory that all laymen are priests: vos estis regale sacerdotium. Any layman can in point of theory lead in prayer and conduct public worship. The laying on of hands is still practised, but this is a mere ceremony constituting the candidate a licensed minister, i.e., licensed (permitted) to preach the Word. By an ordained minister is meant one who has been given the spiritual charge of a parish, or congregation. Compared with the constitution of the Catholic Church we hnd these discrepancies: 1) there arc no clerics as distinct from laymen by reason of holy orders; 2) all jurisdiction resides ultimately in the faithful who in turn delegate it to the representative bodies de­ scribed above; those bodies represent the faithful, just as in their judgment the Apostles represented the Church universal, so that the authority conferred on the Apostles directly by Christ should revert to the faithful upon their death, and the faithful in turn would govern the Church as they saw fit, which in Calvin’s theory took the prcsbyteral form; 3) while there is a well-organized system of government based along hierarchical lines, this hierarchy is not of divine institution, but man-made, and the entire plan could be discarded at any time for some other; 4) the officers (with us clerics) are constituted in authority by the call of the people; where the consent of the civil ruler must be had, this is on the theory that the faithful have delegated their authority to him in those matters. Congregationalism—Of all non-Catholic church polities this is the most democratic. Each congregation (house of worship) is a Church in itself. It chooses its own officers, and is subject to no outside jurisdiction. And while the individual churches of the same denomination (for there is a mother church from which they all branch out) feel the need of consulting their sister churches on matters of doctrine and discipline, and for this purpose even hold conventions at stated intervals, yet the deliberations so arrived at are not regarded as juridically binding. The title Congregational likewise designates a particular denom­ ination which was planted on our soil by the early Pilgrims. After their form of organization all other sects similarly constituted in point of government, if not of doctrine, arc named, e.g., the Baptists Unitarians, Adventists, American Lutherans, etc. As in the presbyte ral, so also in the congregational system there are no holy orders. They believe that the call of the congregation gives ministerial authority to a preacher. It belongs to dogmatic theology to expose the fallacy of the 146 THE CLERICAL STATE foregoing systems. The study must be based not upon the text of the New Testament alone, but mostly upon the history of the early Church and the writings of the Fathers. The New Testament is rather vague concerning the divine constitution of the Church. Hence, it is not surprising that the so-called Reformers and their disciples, who rejected tradition as a source of revealed doctrine, should have strayed so far from the truth on this point. Chapter II ECCLESIASTICAL OFFICES Clerics receive the power to sanctify through holy orders. This subject will be considered in Book III among the sacraments. At this time the Code considers ecclesiastical offices through which clerics receive the power of jurisdiction. That is to say, all jurisdiction derives ultimately from an office in the Church. If there is question of ordinary jurisdiction this is inherent in every office: if there is question of delegated jurisdiction, this is conferred by a cleric vested with ordinary jurisdiction attached to an office he holds, which in turn he shares with another cleric not in posses­ sion of the like office. In three articles we shall discuss: 1) the nature of ecclesiastical offices; 2) their conferment; 3) their loss. ART. I. Nature of an Ecclesiastical Office (c. 145) While in the broad sense any task undertaken in the Church may be called an ecclesiastical office, e. g., the position of organist, janitor, etc., still in the strict sense an ecclesiastical office is a position permanently created by divine or ecclesiastical law which carries with it either the power of orders or of jurisdiction. It is essential, therefore, to an ecclesiastical office that the post enjoy objective stability or perpetuity. Hence, a chaplaincy created for one or two years is not an ecclesiastical office, but the position must be one which has to be filled whenever a vacancy occurs. And so, powers conferred for a transient task amount to a delega­ tion. However, subjective stability is not required, and so we can have parishes with removable pastors. In fact, most ecclesiastical offices are removable ones. It is likewise essential that the office shall have been instituted 147 148 ECCLESIASTICAL OFFICES either by divine law, e. g., the papacy, or by ecclesiastical law, c. g., the office of synodal judge, vicar-general, etc. And so, an office instituted by the civil authority or by private individuals, even though its aim be of a charitable or religious nature, would not constitute an ecclesiastical office. Finally, an ecclesiastical office, to be such, must carry some power either of orders, e. g., a chaplaincy, a canonry, or of jurisdic­ tion, e. g., the office of bishop, vicar-general, etc. Therefore, as was said, the office of organist in a church cannot be considered an ecclesiastical office in the strict sense, since an organist as such requires neither the power of orders nor of jurisdiction. Likewise, the office of local and major superior in religious nan-exempt organ­ izations is not an office in the strict sense of the word. However, where the Code contains no special legislation on offices in religions, and provided the particular law of the religion is silent, the common law on ecclesiastical offices in the strict sense may be applied also to such religious offices in virtue of the analogy of law permitted by canon 20. But to be a benefice an ecclesiastical office must moreover assure the othce holder a permanent revenue. This temporal and material aspect of ecclesiastical offices will be considered in Bk. Ill in the chapter on benefices. ART. II. Conferment of Ecclesiastical Offices An ecclesiastical office may be conferred in four ways, and the Code contains special rules for each of these modes of canonical provision. But before proceeding to this point the Code lays down some general principles which apply to every kind of canonical provision. §1. Conferment of Ecclesiastical Offices in General No ecclesiastical office may be validly obtained without an antecedent canonical provision. By canonical provision is meant the grant of the office by the competent superior made in accordance with the rules which are to follow (c. 147). This grant on the part of the ecclesiastical superior is called free appointment if the superior was free to choose the candidate; it is called institution if the candi­ date was presented or nominated by a person other than the superior ; it is called confirmation if election preceded; it is called admission ECCLESIASTICAL OFFICES 1+9 when postulation preceded ; finally, it is election simply in the case where elections require no confirmation on the part of the superior (c. 148, §1). No person may be confirmed, admitted or instituted following election, postulation and presentation or nomination respectively, unless he is first judged fit for the office by his proper Ordinary, even though this may require an examination (c. 149). An office which is not vacant de jure may not be validly con­ ferred. If the office is de jure vacant, but not de facto, e.g., due to the presence of an intruder, it suffices that the superior when grant­ ing the canonical provision make mention of this fact (c. 150, §1; 151). The mere promise of an office can beget no juridical effect, since it is the desire of the Church to suppress unholy ambition and the abuse of simony. Only the Roman Pontiff can appoint a co­ adjutor with the right of succession (c. 150, §2). §2. Conferment of Ecclesiastical Offices in Particular There are four modes of filling vacant offices: 1) by free appointment ; 2) by election; 3) by postulation; 4) by presentation or nomination. A. Free Appointment Most vacant offices are filled by free appointment {libera col­ latio). This is the act by which the competent superior confers an office upon the candidate of his choice. It remains free appointment even where others must be consulted, e.g., where me pastor must be consulted in the appointment of an assistant pastor. Likewise it is free appointment where a parish must be filled through the method known as concursus. In a disputed case concerning which way the office may be filled, the law both presumes that the office is one of free appoint­ ment, and that the appointment belongs to the local Ordinary (c. 152). ... The clerical candidate must possess those qualifications which the law demands for the office in question. These qualifications arc found under the various headings of the Code which treat of different ecclesiastical offices in detail, e. g., under bishops, vicars· general, etc. Also particular law must be consulted for possible additional requirements, e. g., the constitutions of a religious organ­ ization may demand a more advanced age for the novice master, the provincial, etc., than the Code calls for. Whether these qualifi­ 150 ECCLESIASTICAL OFFICES cations are required for validity or only licitness will also be ascer­ tained from the same common or particular law (c. 153). Other things being equal, the office should be given to the worthier candidate, i. c., the more qualified candidate. Thus, of two clerics who are equally learned and prudent, an office which calls for greater executive ability should be given to him who possesses this gift in a higher degree. It is left to the superior to decide who is the worthier candidate among many, and no action for rescinding the appointment can arise on this score (c. 153, §2). An office which calls for the care of souls, c. g., a parish, can be conferred only on a priest (c. 154). All offices must be filled at least within six months from the date of vacancy. But for vacant parishes whose provision usually requires greater deliberation and thought, the law permits the Ordinary to defer the appointment for a longer period if necessary (c. 155; 458). No cleric can be given two incompatible offices. Those offices are incompatible which cannot be discharged at one and the same time by the same cleric. In particular, two offices must be con­ sidered incompatible; 1) if the law specifies this with regard to certain offices, e. g., that of judge and actuary in the same trial ; 2) if two offices which are located in different places call for the law of residence, e. g., two parishes; 3) if two offices must be dis­ charged in the same place at the same time, e. g., two canonries; 4) if of two benefices one suffices for the becoming maintenance of a cleric (c. 156). A cleric who takes peaceful possession of an office incompatible with the first thereby forfeits the first office (c. 188, n.3). All appointments should be in writing. This is for the licitness, not the validity, of the appointment, and is designed to obviate litigations later on (c. 159). B. Election (c. 160-178) Many ecclesiastical offices at the present day arc filled by way of election. This is true, e. g., of the papal office, of bishoprics in certain European countries, in the case of the diocesan administrator, and of most offices in a religious organization. What follows concerning the method of conducting ecclesiasti­ cal elections is the legislation of the Code. If particular law enlarges the obligation of the common law, i. e., insofar as it is legislation ECCLESIASTICAL OFFICES 151 praeter jus commune, particular law prevails, as where a two-thirds majority is necessary to elect the Pope according to the Constitution Vacante Scde Apostolica which is found at the end of the Code (c. 160). (1) Time for Holding Elections (c. 161). Every election must take place within at least three months from the vacancy of the office. But particular law may rule otherwise. Failure to hold an election within the prescribed time deprives the voters for that occasion of the right to elect. The vacant office is then filled by free appointment on the part of the superior who had the right to confirm the election. The three months for holding elections must be so computefl that the time does not transpire if the electors are impeded from holding the election. (2) Convoking the Electors (c. 162) Since voting by letter or proxy is generally forbidden in ecclesiastical elections, the voters must be present. It belongs to the president of the electoral college to convoke the voters, and to decree the time, place, and other circumstances of the election. Failure to convoke an elector does not invalidate rhe election. But if any individual elector was overlooked, and therefore was absent, he has the right to petition the superior to rescind the election. Failure to convoke a third of the electors automatically invali­ dates the election. (3) Absentee Voting (c. 163, 168) All who have been convoked must be personally present in the place of the election if they wish to vote. As a general rule absentee voting is forbidden under pain of invalidity. If an elector is present in the house but because of sickness cannot come to the room where the electors are convened, the tellers may go to his room to receive his vote. 152 ECCLESIASTICAL OFFICES (4) Invalid Votes (c. 167; 170) The following votes arc invalid : 1 ) votes cast by persons not qualified to vote; 2) a vote which one gives to himself; 3) votes which are not secret; 4) uncertain votes; 5) blank votes; 6) condi­ tional votes; 7) disjunctive votes; 8) votes cast under the influence of grave force or fear. We shall consider these points singly. The following persons cannot cast a valid vote: 1) persons incapable of a human act; 2) persons under the age of puberty; 3) those under censure, or infamy of law, after sentence has been passed by the ecclesiastical court; 4) heretics and schismatics; 5) all who have been deprived of active voice in punishment. Λ vote is invalid which a person gives to himself. In ecclesiasti­ cal elections, unlike civil elections, every effort is made by the law to suppress unholy ambition. Those votes are invalid which are not secret. In ecclesiastical elections ever}' effort is likewise taken to preclude wounded feelings, a precaution essential particularly in a religious community where the electors must live a common life. Secrecy is also a safeguard against simony. To maintain secrecy the votes should be in writing, and the ballot folded when cast. Prior to the election two tellers are appointed to take up the ballots, and to count and read them in the presence of the presiding officer. Both the tellers and the president arc under oath of secrecy not to reveal the names of the voters, i. e., the manner in which they voted. Moreover, after the ballot, or if several ballots are held in one session, after the session, the votes arc to be burned (c. 171, §4). The confidential manifestation of one’s vote to two or more persons docs not invalidate the vote whether this is manifested during or after the election. The revelation of one’s vote publicly before the majority of the electors would render that vote invalid but not the balloting. A vote invalid by reason of want of secrecy does not in itself invalidate the entire election. The vote is simply not com­ puted with the rest. Uncertain votes are invalid. Under this head come illegible votes and blank votes. Conditional votes arc invalid. To expedite elections the votes must be absolute. To vote for Titius provided he introduces such and such reforms would be equivalent to suspending the election. The same suspense would be involved in the necessity of ascertaining ECCLESIASTICAL OFFICES 153 beforehand the verification of conditions de praesenti or de praeterito attached to a vote. To be valid the vote must be determinate, not disjunctive. One does not express his will sufficiently should he vote for “Titius or Cajus.” Finally, the vote must be free in the sense that if one is con­ strained through grave fear or fraud to vote for this or that candi­ date, his vote is invalid. , (5) Number of Votes Required to Elect (C. 174) Unless particular law rules otherwise, an absolute majority is required and suffices for election. An absolute majority is any number over half of all the valid votes cast. Invalid votes are not reckoned ; they are simply thrown out, and the majority is computed from what remains If in the first and second ballot no candidate receives an absolute majority, then in the third ballot the relative majority suffices. We have already explained this subject elsewhere (cfr. p. 132). Sometimes particular legislation is more severe. It may demand an absolute majority in every ballot; it may be satisfied with a relative majority only in the tenth, fifteenth ballot, etc.; it may de­ mand a two-thirds majority, as in the election of the Pope. (6) When the Ballot Is Invalid We have seen which votes arc to be considered invalid. Some­ times one invalid vote suffices in itself to invalidate the whole elec­ tion, but not always. It remains to be seen when the ballot (scrutinium) is invalid. An election is invalid: 1) If more than a third of the electors were not convoked and were absent (c. 162, §3); 2) If a person not a member of the electoral college is admitted to vote, saving lawfully acquired privileges. The statutes of the corporation specify which members have the right to vote (c. 165) ; 3) If a layman interferes in any way with the canonical free­ dom of an election (c. 166) ; 4) If an excommunicated person knowingly was admitted to vote, even though he was a member of the electoral body, and provided sentence of excommunication had been passed upon him (c. 167, §2) ; 1S+ ECCLESIASTICAL OFFICES 5) If an invalid vote was decisive, namely if the candidate­ elect needed precisely that one vote to complete the majority required (c. 167, §2) ; 6) If the election was infected with simony (c. 729) ; 7) If the number of votes cast exceeds the number of voters. Here is must be remembered that no one may cast two votes in his own name even though he should be entitled to vote for more than one reason, e.g., bring at the same time an ex-provincial, a doctor of theology', a delegate of some convent, etc. (c. 171, §3; 164) ; . 8) If the candidate-elect does not possess the qualifications required by common or particular law for the office in question under pain of invalidity (c. 153, §3). Generally speaking, if a ballot is invalid, a new ballot (scrutini­ um) is taken. If the invalidity is discovered only after the election is over and the electors have returned to their homes, and it is not convenient to recall them, a sanatio in radice may be asked of the Holy Sec. If the invalidity of an election remains undisclosed, acts placed by an invalid office holder are valid in virtue of common error (cfr. p. 167-168). (7) Confirmation o/ the Election (c. 177) Most elections need no confirmation. This is true of the election of the Pope, vicar-capitular, diocesan administrator, etc. In such cases the election confers upon the candidate full right to the office, or the jus in re. In many religious organizations with a centralized form of government elections must be confirmed by the competent superior as specified by the constitutions. Here the election confers only a jus ad rem. But since it is the object of the law in requiring con­ firmation merely to make sure that the candidate possesses the qualifi­ cations for validity, and that the election was otherwise canonically conducted, once this is ascertained the superior cannot refuse to con­ firm the election. Usually it is the superior next in authority to the elected person who grants confirmation, e. g., the provincial confirms the election of a local superior, the general confirms the election of the provincial, the Holy Sec confirms the election of the general. ECCLESIASTICAL OFFICES 155 (8) Election by Compromise (c. 172-173) Unless the law rules otherwise in the case of some particular office, the electors can choose their candidate by compromise (electio per compromissum). To elect by compromise means that all the voters unanimously agree in writing upon one or more persons to whom they will transfer for that occasion their right to choose the candidate. Election by compromise is an expedient for breaking a deadlock. Where the common law obtains a deadlock is impossible. The rea­ son is that the relative majority in the third ballot determines the candidate. Deadlocks can more frequently happen where an absolute majority is required by particular law in every ballot, or where a two-thirds majority is required. C. Postulation (c. 179-182) When a candidate for office labors under some canonical impediment he cannot be elected, c. g., if he lacks the required age. In this case the electors can by their majority vote only request (postulate) the superior that he dispense the candidate from the impediment and admit him to office. Postulation is conducted in precisely the same way as an elec­ tion ; there is no need of any preliminary agreement to postulate. The very fact that a cleric who is impeded from office receives votes shows that those voters are postulating for him. Ordinarily the ballot (schedula) cast for a candidate who needs postulation should read: postulo Titium. Cajum, etc. A vote which reads eligo vel postulo will count for election if the candidate has no impediment, but for postulation if he is impeded. It is disputed whether a vote which reads eligo in place of postulo, or vice-versa is invalid. In practice to avoid this pitfall the ballots are usually printed postulo vel eligo. In that case the voter merely adds the name of the candidate of his choice without cancelling either of these words. The number of votes required to postulate is the same as for election if all candidates who are receiving votes labor under some impediment which debars them from office. That is, an absolute majority is required in the first two ballots, and a relative majority in the third ballot suffices where common law obtains. If postulation concurs with election a two-thirds majority is 156 ECCLESIASTICAL OFFICES required to postulate. Postulation concurs with election when in the same ballot votes are cast for one or more candidates who are not impeded (election) and other votes arc cast for one or more candi­ dates who arc under impediment (postulation). In that case justice dictates that the door to the office be opened more readily to him who labors under no impediment. To clarify this by an illustration, where the common law obtains: If three persons A, B and C receive votes in the first two ballots, and Λ and B are elective candidates with no impedi­ ments. while C needs postulation, an absolute majority given to either A or B in these two ballots will determine the election, while C will require a two-thirds majority. Suppose that none receives the absolute majority required and the election passes into a third ballot. Here a relative majority will suffice for cither A or B, while C still needs a two-thirds majority. This was decided by the Ponti­ fical Committee July 1, 1922 {Acta XIV, 406). And so, if 21 valid votes were cast in the third ballot, 5 going to A, 3 to B and 13 to C, in this case A must be considered elected. If only A and C were in the running in the third ballot 8 votes would elect A, C would need 14. When a candidate receives the required number of votes for postulation, it is left to the superior to admit or reject the petition of the electors. The postulated candidate has not even a jus ad rem to the office. Dispensation from the impediment is a pure favor to which the candidate can claim no strict right. Against the refusal of the competent superior to admit the postulation there lies no relief. The election must be resumed. D. Presentation and Nomination (c. 1448-1471) Presentation of a candidate is another way of providing for vacant offices. To show her appreciation toward those of the faithful who contributed of their material means to the construction or upkeep of sacred edifices, or the endowment of benefices, the Church in past ages was wont to grant such patrons the right to present to the vacant church, chapel, benefice, etc., a cleric of their choice. This was called the right of patronage or of advowsan (jus patronatus). No new rights of patronage may arise under the law of the Code. Those existing at the time of the Code’s promulgation remain intact. In the United States the right of patronage is unknown. The II Plenary Council of Baltimore (n. 184) expressly declared that no offerings of the faithful, whether in the form of pew rent, plate ECCLESIASTICAL OFFICES 157 collections, salaries, subscriptions to purchase land or to construct a church could in any way be considered as conferring the right of patronage. In this country bishops have the right of free appoint­ ment to all secular parishes. By nomination is meant the presentation of a candidate by some one other than a patron of a church or benefice. For centuiies the Roman Pontiffs have accorded to Catholic rulers certain rights with respect to nominating to vacant secs, and in some cases to parishes and other benefices. Such rights arc granted as a rule through concordats. In the United States the civil authorities have never interfered in the freedom of ecclesiastical elections. Although Catholic bishops, and even pastors, are persons of influence in the political and social life of the nation, no danger to the American system of government or to a political party from such clerical influence has ever been conceived sufficiently serious to cause civil interference in ecclesiasti­ cal appointments. For this we are indebted to the absence in our country of that excessive spirit of nationalism which for centuries has been the curse of European nations. ART. III. Loss of Ecclesiastical Offices (c. 183-195) An ecclesiastical office is lost in five ways: I) by resignation; 2) by deprivation; 3) by removal; 4) by transfer; 5) by lapse of term (c. 183, §1 ). By the going out of office of the superior who conferred it, the office is not lost, save in two cases: 1) where the law so provides, as in the case of the vicar-general who loses his office simultaneously with the bishop; 2) if the superior when conferring the office added the proviso: ad beneplacitum nostrum, or its equivalent (c. 183, $2). Resignation—Any cleric who is in possession of his mental faculties may resign his office, unless he is expressly forbidden by the law to do so. Thus, e. g., a novice is forbidden by c. 568 to resign his benefice prior to profession. As concerns religious office­ holders, they may be forbidden by their constitutions to resign their office. Although no special prohibition to resign exists, still there must be a just cause authorizing the resignation, e. g.. loss of the cleric’s ISS ECCLESIASTICAL OFFICES good name in the parish, a change of climate for reasons of health, advanced age, etc. A resignation does not take effect until it is accepted by the superior who conferred the office. Even so, the office does not become vacant until the resigning cleric has been informed of the acceptance of his resignation. Hence, he may not quit his office immediately upon resigning. For validity the resignation must be made in writing, or orally before two witnesses. The document of resignation must be pre­ served in the archives of the Curia against the eventuality of the cleric’s later regretting his step, and starting a litigation. The superior must cither accept or reject the resignation within one month of its being tendered. Should he fail to do so, however, a new resignation is not required, but he may accept the resignation even after the lapse of a month, unless the cleric has recalled his resignation, which he may do at any time prior to its acceptance (Code Comm., July 14, 1922; Acta XIV, 526). Resignations extorted through grave fear or force, simony or fraud, are ipso facto invalid. The following acts carry with them tacit resignation (c. 188) : 1 ) Religious profession as described in c. 584 ; 2) Failure to take possession of an office within the time spec­ ified ; 3) Acceptance of a second office incompatible with the first, and in this case the first office is considered vacant automatically by reason of tacit resignation; 4) Public apostacy from the Catholic faith; 5) Voluntary enlistment in the militia; 6) Marriage, though it be merely a civil marriage ; 7) Failure to resume the clerical garb within a month after the Ordinary’s warning; 8) Failure to resume residence within the time specified by the Ordinary. Privation of office may he decreed for a punishable offense, or for purely administrative reasons, e. g., advanced age of the incumbent. One cannot be deprived of an irremovable office save for an offense and by way of a formal trial. The offense must be one which is punished in law with privation of office. But in the cases described on p. 655 irremovable pastors can be deprived of their parishes in an administrative manner without a formal trial. As to removable offices, a cleric can be deprived of the same ECCLESIASTICAL OFFICE 159 either for administrative reasons or for some offense. And the offense need not be among those punished by the law with privation. Nor is it necessary that a formal trial take place. Transfer—Usually a cleric is not simply removed from an office and left to his own resources, but he is given another office, i. e., he is transferred. In the transfer of pastors the procedure outlined on p. 658 is to be followed. In all other cases no special mode of proceeding on the part of the superior is defined in the law, save where the transfer is not voluntary but compulsory. In the latter case the transfer is equivalent to privation of office, and what was said under that head above applies at this place. When a transfer is effected, the first office becomes vacant only after the cleric has taken possession of his new office. In the mean­ time his revenues accrue to him from the first office, unless the Ordinary rules otherwise. Chapter III ORDINARY AND DELEGATED POWER Having seen how the power of orders is received through ordination, and the power of jurisdiction through an office or by delegation, it remains to learn the rules that govern the proper exercise of both powers. ART. I. Exercise of Orders The episcopal, priestly and diaconal power of orders cannot be delegated. The power of minor orders can be delegated. Thus mere laymen, as boys, serve at Mass and act as acolytes. Whether the power of the subdeacon can be delegated to one who has not received that order is disputed, since there exists a controversy whether subdiaconate is of divine or ecclesiastical origin. Certain functions, though reserved to bishops, arc not derived through episcopal consecration, and so may be delegated or com­ mitted to priests. Thus by law, and again by privilege or papal induit, some priests are empowered to confer minor orders, to con­ firm, and to perform various consecrations (c. 210). The power of orders is never lost, even through suspension or through degradation to the lay state. This is in virtue of divine law when there is question of the episcopate, priesthood and diaconate, and probably of the subdiaconate. It is in virtue of canon law alone in the case of minor orders. That is, the Church expressly wills that the power received through minor orders be considered permanent. And so a cleric in minor orders returning to the clerical state after quitting his studies, need not be reordained. ART. II. Exercise of Jurisdiction Jurisdiction in general—We have already seen how the power of jurisdiction differs from the power of orders (p. 140). It 160 ORDINARY AND DELEGATED POWER 161 remains to point out the different kinds of jurisdiction, and to state the rules that govern their proper exercise. Ecclesiastical jurisdiction may be divided into the following classes: 1) jurisdiction of divine law, and jurisdiction of ecclesiastical law; 2) original and vicarious jurisdiction; 3) legislative, adminis­ trative and judicial jurisdiction; 4) jurisdiction of the external forum, and jurisdiction of the internal forum; 5) contentious and voluntary jurisdiction; 6) ordinary and delegated jurisdiction. Often these different categories overlap; they do not mutually exclude one another. A priest appointed to preside at a definite court trial is exercising at one and the same time a jurisdiction that is vicarious, of ecclesiastical law, judicial, of the external forum and delegated. This will become clearer as we proceed. §1. Jurisdiction of Divine and Ecclesiastical Law Jurisdiction is of divine law if it flows from an office created by divine law. There are only two such offices: the papacy, and the subordinate episcopate. All other offices in the Church being of ecclesiastical origin, the jurisdiction which they confer is said to be of ecclesiastical law (origin), e.g., the jurisdiction of the vicar­ general, of diocesan judges, etc. §2. Original and Vicarious Jurisdiction Original jurisdiction is that which a cleric exercises in his own name; vicarious jurisdiction, as the word indicates, is that which a cleric exercises in the name of another. All vicars in the Church exercise such power, e. g., the vicar-general exercises his jurisdiction in the name of the bishop. Say the same of the vicar-forane or rural dean, of the diocesan official, and of all clerics who enjoy only delegated power. But note well, that while all delegated jurisdic­ tion is vicarious, not all vicarious jurisdiction is delegated, as will appear from what is to follow. Archbishops, patriarchs, abbots, the officials of the Roman Curia, vicars and prefects Apostolic, the diocesan administrator—all these are papal vicars. §3. Legislative, Administrative and Judicial Jurisdiction Those who make laws for a society exercise legislative power. Those who enforce these same laws outside of court exercise administrative power, called also executive jurisdiction. Those who enforce the law in court by way of a trial by deciding litigated questions of law or fact, exercise judicial power. 162 ORDINARY AND DELEGATED POWER Most modern civil governments divide all power in the State into three branches, and no one department can invade another. But in the Church by divine law this three-fold power is vested in the Pope for the universal Church, and in each residential bishop for his diocese. But the Pope and the bishops can share their authority with other clerics if they choose to do so. In point of fact this is what happens. And so the Pope and the bishops are relieved of much work which they could not personally discharge. Some­ times it is administrative jurisdiction which these clerics participate in, e. g., the vicar-general’s jurisdiction is of an administrative nature, as is also the jurisdiction of the Roman Congregations. To the dio­ cesan official the bishop gives judicial power, and the Pope gives the same to the Roman Rota. It is not customary for the Pope or bishops to share with others their lawmaking authority. Decrees and instruc­ tions which emanate from the Roman Congregations, and orders is­ sued by the vicar-general, are not strictly speaking formal law, but merely administrative acts (cfr. p. 96-98). §4. Jurisdiction· of the External and Internal Forum Jurisdiction which has for its immediate object the maintenance of external order in the ecclesiastical society (church universal, diocese, religious Order, prefecture Apostolic, etc.) is called jurisdic­ tion of the external forum. In virtue of this jurisdiction doctrine is defined, laws are enacted, appointments to offices are made, church property is administered, litigations are decided, and punishments arc inflicted. Jurisdiction which has for its immediate object the sanctifica­ tion of souls is called jurisdiction of the internal forum. In the order of time jurisdiction of the internal forum possibly preceded jurisdiction of the external forum. For the primary mission of the Church was, and is, to save souls. Only because the maintenance of public order was a necessary requisite to this end, did she acquire jurisdiction of the external forum. Civil rulers exercise only juris­ diction of the external forum. They have only one function to per­ form. namely, to maintain public order among the citizens of the State. An example will illustrate the presence of both kinds of jurisdiction in the Church. A confessor when absolving from sins is exercising jurisdiction of the internal forum. The superior who legislates concerning the qualifications of confessors, or who confers upon a particular priest confession faculties, is exercising jurisdiction of the external forum. To the internal forum belong the preaching of the gospel, the ORDINARY AND DELEGATED POWER 163 administration of the sacraments, the conducting of public worship, and the granting of dispensations, commutations, and pardons in oc­ cult cases, e.g., in the case of occult marriage impediments, occult irregularities and censures. The internal forum, which is also called the forum of conscience, is divided into the internal sacramental forum, and the internal extrasacramental forum, depending on whether conscience in occult cases is relieved in the sacrament of penance, or outside of the sacrament. Rules of law that govern the exercise of the jurisdictions under question are: 1) An act of jurisdiction exercised in the external forum is valid likewise for the internal forum, but not vice versa (c. 202, §1). Thus, marriage impediments and censures of a public nature which are removed outside of confession need not be removed again in the confessional. 2) When jurisdiction is granted for the internal forum in general terms, it can be exercised in cither the sacramental or the extra-sacramental forum, unless the nature of the matter calls for the sacramental forum (c. 202, §2). This means that an occult impediment can be removed without the need of a party going to confession for that purpose, it sufficing that the cleric notify the party that the impediment is here and now removed. But faculties to absolve from a reserved sin must, by the very nature of the case, be exercised in sacramental confession. 3) If the forum was not mentioned when jurisdiction was conferred, it may be exercised in either the external or internal forum, unless the nature of the case dictates one definite forum, c. g., public impediments are removed in the external forum (c. 202, §3). This simply means that a public record of the act should be kept; the dispensation must be recorded in the parish and diocesan books, and when this is done, the act of jurisdiction has been exercised in the external forum. The same test applies to absolutions given in the external forum ; a record thereof is kept in public files. No record is kept of acts of jurisdiction performed in the sacramental forum, because of the sacramental seal. Where an occult matter is not revealed solely through confession, and the seal does not bind, since the matter is occult it belongs to the internal forum, and is not recorded in public registers, but in special records kept in the secret archives of the chancery, if a record is necessary. §5. Contentious and Voluntary Jurisdiction In ancient Roman law, when the judge had to give a decision in a case where either party was unwilling to appear in the litigation, 164 ORDINARY AND DELEGATED POWER his jurisdiction was considered contentious, and he had to proceed by way of a solemn trial. But if both parties willingly asked for the judge’s intervention, the jurisdiction of the judge became voluntary jurisdiction, e. g., in adoption and emancipation cases. The distinction was carried over and remains in canon law. But the test whether jurisdiction is contentious or voluntary is no longer found in the object but in the mode of procedure. If canon law calls for a formal trial in litigated matters, the jurisdiction involved is called contentious; if the superior can proceed without observing the formalities of a trial, he exercises voluntary jurisdiction, whether the party whose interests are at stake is willing or unwilling to have him act. Therefore, acts of contentious jurisdiction are those only which are placed by a judge during the course of a court trial. All other jurisdictional acts in the Church arc acts of voluntary jurisdiction, c. g., the enactment of laws, and decrees, instructions, etc., the giving of precepts, the granting of dispensations, appointments to offices, extra judicial infliction of penalties, etc. Rules of law—Contentious jurisdiction cannot be exercised in one’s own behalf, because nemo judex in causa propria, or no judge can try his own case (c. 201, §2). Neither can the judge set up court outside of his territory, unless he has been forcibly expelled from his territory, or is impeded from returning to his territoy (ibid.). Voluntary jurisdiction, however, can be exercised even to one’s own benefit, and outside of one’s territory, or toward a subject out­ side of one’s territory (c. 201, §3). In the first supposition, one who can dispense others, e. g., from fast, can dispense himself. In the second, a bishop while absent from his diocese could nevertheless make appointments. To illustrate the third case, a bishop could grant to a student priest away from the diocese permission to read books on the Index within limits. Jurisdiction, whether contentious or voluntary, cannot be exer­ cised except over one’s own subjects. But, sometimes, the law or induit makes exceptions. 'Thus, penitents coming from outside the diocese can be absolved by any approved confessor in the diocese where they happen to be visiting. A bishop in virtue of quinquennial faculties may usually dispense transients from impediments in cases where he could dispense his own subjects. §6. Ordinary and Delegated Jurisdiction Definitions—Ordinary jurisdiction is that which the law at­ taches to an office; delegated jurisdiction is that which is attached or given to a person without reference to any office he may, or may not, ORDINARY AND DELEGATED POWER 165 have. (cfr. c. 197, §1). There arc many powers which the Code, e. g., attaches to the episcopal office. These can be delegated to any or all priests, unless the law forbids delegation. Thus, the bishop can delegate priests to dispense from the banns of matrimony if a just cause is present for the dispensation. The bishop is empowered by law to absolve from certain censures reserved to the Holy See. He can delegate his priests as confessors to absolve in virtue of general faculties to that effect, etc. All this is said merely by way of illustrating the difference between ordinary and delegated jurisdic­ tion. Much more will be said presently about some involved rules of c. 199-200. The above must be kept in mind when, as we so often do, we meet the words Ordinary and local Ordinary in the Code. One would think that any cleric who enjoyed ordinary jurisdiction in the external forum ought to be called an Ordinary; but this is not true. Such a one may be called a prelate, e. g., a synodal judge; but Ordinary has a very technical and restricted meaning. Under the term Ordinary come only the following: 1) the Roman Pontiff; 2) residential bishops; 3) abbots and prelates nullius; 4) vicars and prefects Apostolic; 5) those who temporarily fill the office vacated by any of the foregoing, e. g., a diocesan ad­ ministrator; 6) vicars-general ; 7) major superiors in clerical exempt religions (c. 198, §1). By local Ordinary are meant all the above excepting religious superiors (c. 198, §2). Rules of law govern in g the exercise of ordinary and delegated jurisdiction; 1) He who possesses ordinary jurisdiction can delegate it wholly or in part, unless the law expressly provides otherwise (c. 199, §1). The Code Comm, declared that pastors cannot delegate con­ fession faculties, although they possess ordinary power to hear the confessions of their subjects (Oct. 16, 1919, Acta XI, 477). 2) Jurisdiction delegated by the Holy See can be subdelegated either ad actum or habitualiter (called also per modum habitus, and ad universitatem negotiorum}, unless one was chosen delegate for personal reasons (stated in the rescript, e. g., because of learning, prudence, experience, etc.), or unless subdelcgation was expressly forbidden (as sometimes happens with certain cases falling within the bishop's quinquennial faculties, because they are cases the Holy See wishes to keep under strict control). This ruling will be found in c. 199. §2. Therefore, generally speaking, a bishop may subdelcgate the 166 ORDINARY AND DELEGATED POWER chancellor to grant marriage dispensations without restricting their number, provided his quinquennial faculties empower the bishop himself to dispense from those impediments. Again, if the bishop is himself empowered by the Apostolic faculties to absolve from certain censures reserved to the Holy Sec, he may subdclegate Fr. John to absolve Titius in his stead. This is subdclegation ad actum, namely whenever the case for which one may act is designated and specified in such a way that it cannot be mistaken for any other case. Fr. John knows whom he has in mind when he asks for faculties to absolve a certain penitent without revealing the latter’s name. But the bishop may subdelegate to one or all of his priests general faculties to absolve from censures reserved to the Holy See, which he possesses in virtue of his quinquennial faculties. This is habitual subdelcgation, because the cases that will arise cannot be foreseen, and there­ fore are not designated or specified in any way. 3) We considered above what happens if the Holy Sec dele­ gates. Now suppose a cleric inferior to the Roman Pontiff who is vested with ordinary jurisdiction should delegate, does the same rule as under (2) apply ? Partly it docs, and partly it does not. If habitual delegation is granted, say by the bishop, to, e. g., his rural deans to absolve from censure or sin all who contract, say, civil marriage (we suppose this to be a reserved case in the diocese), and Fr. John instead of sending the penitent to the dean, requests from the dean the faculty to grant the absolution himself, the dean could subdelcgate Fr. John in the case proposed to him. But the dean could not grant Fr. John habitual subdelegation, and herein we find a slight difference in the rule stated in (2). There is another difference. If the Holy Sec delegates the bishop ad actum the latter can generally subdelegate, as we saw. But if the bishop delegates ad actum his ordinary power, the delegate cannot subdclegate, unless the bishop should expressly state this. And so, if nothing was said to that effect, if Fr. John obtained faculties from the bishop in the above case to absolve the nupturients, and on the appointed day for the confession he is called away, he cannot sub­ delegate his assistant to hear the confessions of the penitents and absolve them. And so we find that provision for this contingency' is often found in the absolving faculties on occasions of this nature. These rules under (3) are found in c. 199, §3,4. 4) No subdelcgated jurisdiction can be subdelcgated again unless this privilege was expressly’ granted. And so, if Fr. John above obtained faculties from the dean, Fr. John is now subdelcgated, since the dean was already himself delegated, and in the event of a ORDINARY AND DELEGATED POWER 167 hurried departure as stated, Fr. John could not subdelcgate his assistant, unless the dean had expressly so stated (cfr. c. 199, §5). N. B. The rules contained in canon 199 arc among the most difficult to master that can be found in the Code, and at the same time they are of such frequent application that time spent in trying to comprehend them will always be time put to good use and profit. §7. How Jurisdiction Ceases 1. Ordinary jurisdiction ceases permanently by loss of office. Temporarily, it ceases: a) if the office holder incurs excommunication or suspension; b) when appeal is taken from a court sentence, the jurisdiction of the judge is meanwhile silent and inoperative in respect to the case appealed (c. 208). 2. Delegated jurisdiction ceases: a) With completion of the delegated task, c. g., after the trial is over in the case of a delegated judge (c. 207). b) With lapse of time if delegation extended to a definite period, as in the case of quinquennial faculties (ibid.). , c) When the number of delegated cases is exhausted, e. g., after the fifth absolution if a confessor was delegated to absolve from five reservations. But acts placed inadvertently in the internal forum are valid even after the time has expired, or the number of cases has been exhausted (ibid). d) If the motive of the delegation ceases, e. g., if litigating parties compromise, or in a matrimonial suit are reconciled before the delegated judge has arrived at the sentence (ibid). e) With recall of the delegation. But the recall takes effect only after the delegate has been notified of the recall (ibid). f) With renunciation of delegation on the part of the delegate. But the resignation does not take effect until the dele­ gating authority accepts the resignation (ibid). g) Upon vacancy in the office of the delegating author­ ity, delegation ceases only in two cases: 1) if the rescript con­ ferring delegation expressly so provides; 2) if the delegate has been empowered to grant a favor to some specified person (gratia facienda), and has taken no steps as yet to execute the favor e.g., a matrimonial dispensation petitioned from the Holy See. But the quinquennial faculties of local Ordinaries do not cease upon vacancy of the Holy See (ibid). 168 ORDINARY AND DELEGATED POWER §8. How Jurisdiction Is Supplied In three cases the Church supplies jurisdiction: 1) when juris­ diction granted for the internal forum overruns its time or number of cases through inadvertance; 2) in a common error; 3) in a positive and probable doubt (c. 209). The welfare of the faithful demands that jurisdiction be sup­ plied in a common error. Thus, a priest visiting in a strange diocese absolves validly even though the pastor for whom he is supplying may have forgotten to ask confession faculties for him. Here the penitents are persuaded that the priest has the power to grant them absolution. Virtual common error suffices, and actual common error is not necessary before the Church supplies jurisdiction, at least according to the majority of writers. Common error is virtual once the founda­ tion has been placed from which common error can arise, e. g., as soon as the visiting priest enters the confessional. It is not necessary that a large section of the parish first confess to the stranger. But to exercise jurisdiction licitly in a common error a grave reason is required. In the illustration above it would be gravely inconvenient for the visitor to discontinue hearing confessions should he become aware of lack of delegated faculties. But the pastor in the case would sin gravely did he neglect asking for confession facul­ ties on the theory that the Church will supply. Also in a positive and probable doubt the Church again supplies jurisdiction. It matters not whether the doubt be one of fact, e. g., is this penitent in actual danger of death to warrant me, a simple confessor, to absolve from his reserved censure in virtue of c. 2252, or whether the doubt be one of law, c. g., can I, a major superior in a clerical non-exempt religion, absolve my fugitive subject from his censure (cfr. p. 714). For the rest, every doubt which rests upon some sensible argument is probable, and if probable, necessarily positive at the same time, since a negative doubt is one in favor of which no convincing, but only a vacuous reason is offered. Chapter IV THE RIGHTS, PRIVILEGES, AND DUTIES COMMON TO ALL CLERICS All clerics have certain rights, privileges and duties in common. These we shall consider in the present chapter. Later, we shall devote our attention to rights, and duties which in addition to these common ones, some clerics have by reason of the office they hold in the Church. ART. I. Common Rights of Clerics All clerics, regardless of how high or low they rank in the hierarchy, enjoy the following rights: 1) the right to holy orders; 2) the right to ecclesiastical jurisdiction; 3) the right to ecclesiasti­ cal offices; 4) the right to ecclesiastical benefices and pensions (c. 118). By this we do not mean that all clerics will actually come into possession of all the above rights. Rather, the above might better be called clerical prerogatives in the sense that clerics alone are entitled to them to the exclusion of the laity. ART. II. Common Privileges of Clerics These are four: 1) the privilege of the canon; 2) the privilege of the forum; 3) the privilege of exemption; 4) the privilege of competency. §1. Privilege of the Canon (c.119). This privilege has for its object to protect clerics against bodily injury. Clerics are privileged in this protection, or we may say 169 170 CLERICAL PRIVILEGES AND DUTIES clerics enjoy a privileged protection, in the sense that those who violate this privilege arc guilty of sacrilege and incur excommunica­ tion. It is called the privilege of the canon because it was inserted into the 15th canon of the II Latcran Council (1139). In the Middle Ages civil courts were not so well organized as at the present time so that many wrongs went unpunished, or their punishment was considered a matter of private vengeance. As a result, clerics as well as laics became liable to bodily injury at the hands of aggrieved persons. To protect at least rhe clergy against such possi­ bilities was the reason for the present privilege. Only real injuries are intended. The injury must be external also. It may consist in bodily harm through physical blows; or an affront to the cleric’s dignity, as spitting upon him; or an impairment of his liberty, e. g., imprisonment. The injury must be deliberate, and not accidental. The excommunication which such offense car­ ries with it is incurred automatically, and is a reserved one (c. 2343). §2. Privilege of the Forum (c. 120) In virtue of this privilege clerics enjoy immunity from lay courts in both civil and criminal suits, so that they cannot be cited as defendants save before the church courts, without previous per­ mission obtained by the plaintiff from the competent ecclesiastical superiors to sue in the lay court. But clerics may be cited to appear as witnesses in lay courts, unless professional secrecy is involved, and saving criminal trials where the accused is threatened with a grave punishment (c. 139, §3). However, civil law courts are better equipped to administer justice today than in times past. And as a result there has been some modification of the privilege of the forum. Permission is easily granted to sue a cleric in the lay court in purely temporal, not spiritual causes, e. g., purely private contracts, but not where neglect of clerical office is the basis of the charge. This the Church reserves to herself. Competent to permit suing clerics in lay courts are: 1) the Holy See if a cardinal, papal legate, a bishop, an abbot or prelate nullius, the supreme head of a clerical exempt religion, or the major officials of the Roman Curia are to be cited; 2) the Ordinary in the case of all other clerical defendants. CLERICAL PRIVILEGES AND DUTIES 171 In many countries the privilege of the forum has fallen into desuetude. In the United States this is only partly true. That is, custom with us permits a layman to sue a cleric in civil court, pro­ vided spiritual matters are not at issue; but a cleric may not sue another cleric without the bishop’s permission (Eccl. Review, Sept., 1912, 313; III Plen. Counc. Balt. n.84). §3. Privilege of Exemption (c. 121) In virtue of this privilege clerics are exempt from military service, and from all duties alien to the clerical state. Such duties are described on p. 182. , At one time the clergy were exempt also from taxation on their lay holdings. This was a gratuitous concession of the civil ruler, and has for a long time ceased to exist. However, the Church claims as a matter of divine right immunity from taxes on property that belongs to moral persons in the Church on the theory that no sovereign society can be compelled to pay tribute to another society. In the States of the American Union all church property is usually free of taxes as a matter of privilege accorded by the state govern­ ments, church corporations being regarded as either charitable or educational institutions. §4. Privilege of Competency (c. 122) In virtue of this privilege a cleric may not be sued for debts beyond his present capacity (competency) to satisfy, if by so doing he would deprive himself of the means of livelihood becoming his clerical state. The obligation to satisfy one’s creditors is not extinguished, but is merely suspended until such time when the cleric will find it possible to pay his debts in full. In the past, when a creditor could have his debtors confined to prison for failure to pay their debts, the privilege of competency accorded to clerics was not without special advantage. §5. Origin of Clerical Privileges Let us distinguish between the historical and the juridical origin of clerical privileges. Historically, they may be traced to the concessions of the Roman Christian emperors, saving the privilege of the canon. Later, they became part of the civil law in the Holy Roman Empire, then of CLERICAL PRIVILEGES AND DUTIES 172 the civil law in states outside the Empire, and remained civil law until the eighteenth century, at least in Catholic countries. As to their juridical origin we have three opinions: 1) That the privileges are of divine law, because by divine law the clerical state is superior to the lay state, so that it is incongruous for clerics to be judged by those over whom the divine law has appointed clerics the judges. But to this it is answered that clerics as clerics are superior to laymen, but as mere citizens clerics are not above laymen. 2) That the privileges are of human origin only, having been intro­ duced by the Christian rulers. To this it is answered that such a statement explains their historical, but not their juridical origin. 3) That the privileges are both divine and ecclesiastical in origin. They arc divine fundamentally and remotely, being based upon the exalted dignity of the clerical state. They are of ecclesiastical law and origin formally and proximately insofar as the Church has the authority to change their form and content in view of exigencies and changes brought about by time. In other words, how the dignity of the clerical state, which is of divine law, shall be protected, and what forms this protection ought to assume, is of ecclesiastical law. This third opinion is supported by two arguments: a) the Council of Trent refers to clerical privileges in the aggregate as: immunitatem Dei ordinatione et canonicis sanctionibus constitutam ; b) the Church has de facto modified the privileges from time to time through con­ cordats, and even abolished them in certain instances, which she could not do were the privileges in their present form of divine origin. ^6. Present Status of Clerical Privileges The French Revolution introduced separation of Church and State for the first time. And since then, and wherever separation obtains, clerical privileges are no longer recognized by civil govern­ ments. But in virtue of concordats clerical privileges remain in some countries in mitigated form. In the United States the clergy of all denominations have been exempt from military service by special congressional acts on the occasion of different wars. It is considered a privilege deriving from the government alone. The privilege of the forum our States do not recognize. The privilege of competency has become a common prerogative of all citizens in modern civilized countries. CLERICAL PRIVILEGES AND DUTIES ART. 173 III. Common Obligations of Clerics Under this article wc shall consider: 1) incardination as the first duty of all who aspire to the clerical state; 2) the positive duties of clerics; 3) their negative duties. §1. Incardination and Excardination Incardination in general—Every cleric must be incardinatcd into some diocese or some religious organization, so that vagrant clerics are not to be tolerated (c. 111). Incardination is the act by which an aspirant to the clerical state becomes subject in his future clerical capacity to a definite bishop, or to the superiors of a definite religious Order or Congrega­ tion. The object of the law requiring incardination is two-fold: 1 ) to provide a means of surveillance over the clergy by subjecting them to some definite superior; 2) to assure every cleric of decent maintenance becoming his state. For, the bishop who ordains a man, with the understanding that he will take him into his diocese, is responsible for his maintenance, at least during his good standing. And since at the present day, such maintenance usually derives from a salary received in compensation for ministerial services in the diocese, the bishop will not ordain and incard inate more men than are needed for the diocese (c. 969). An aspirant to the religious life in clerical religions is not incardinatcd into any diocese. When he takes perpetual vows, he becomes incardinatcd into the religion, and the religion must sup­ port him (c. 585). Modes of incardination—Incardination can take place in four ways: 1) by the reception of first tonsure; 2) by explicit letters of excardination and incardination; 3) by the conferment of a residen­ tial benefice; 4) by acceptance of an ex-religious on the part of a benevolent bishop. 1 ) By the reception of first tonsure a cleric is incardinatcd into that diocese for whose service he is promoted to orders (c. Ill, §2). This is usually the diocese where the aspirant has his domicile, but it need not be. The bishop of present domicile may be the proper bishop to ordain, but because he personally ordains does not imply that he incardinates the cleric into his diocese. An understanding 174 CLERICAL PRIVILEGES AND DUTIES may have been reached between the aspirant, his ordaining bishop, and the bishop of another diocese who is incardinating the cleric. 2) By letters of cxcardination and incardination, a cleric who has already been incardinated into one diocese can transfer to an­ other diocese, e. g., because his health requires a change of climate. Here he needs written letters, one from the bishop willing to incardinate him, the other from his present bishop granting him excardination. Both incardination and cxcardination must be un­ conditional and perpetual (c. 112). 3) By conferment of a residential benefice (c. 114). This is called virtual incardination because the incardinating bishop need not issue written letters of incardination, but the law presumes incardination in the act of giving the cleric a benefice, e. g., a parish. However, the bishop of the first diocese must grant written letters of excardination, or give written permission to the cleric to leave the diocese forever. 4) By acceptance of an ex-religious on the part of a benevolent bishop. This happens when a religious in major orders quits his community having been dispensed from perpetual vows, and desires to remain in the ministry. It is treated later under the head of secularization. We should point out a fifth method, where a secular cleric takes perpetual vows in a religion, this act of itself excardinates him from his diocese, besides incardinating him into his religion (c. 585). Conditions for licit incardination—These are three: 1) the incardination must be necessary or useful to the diocese; 2) the bishop must have testimonials of good character from the candidate’s diocesan curia if he incardinatcs a man who has his domicile in another diocese; 3) the man from another diocese must take an oath to serve forever the diocese he is being incardinated into (c. 117). §2. Positive Duties of Clerics Positive duties or obligations are those which have for their immediate object the sanctification of the cleric, whereas negative duties are those which aim at securing respect for the clerical state. Positive duties include: 1) exercises of piety; 2) spiritual retreats; 3) recitation of the breviary; 4) clerical obedience; 5) theological examinations and conferences; 6) clerical celibacy; 7) common life; 8) the wearing of the clerical garb; 9) residence. In the performance of these duties clerics will succeed in attaining that degree of sanctity, higher than the laity, which the law expects of them (c. 124). CLERICAL PRIVILEGES AND DUTIES 17S A. Exercises of Piety Local Ordinaries must see to it : 1 ) that clerics frequently go to confession; 2) that daily they spend some time in meditation, visit the Blessed Sacrament, recite the rosary, and examine their conscience (c. 125). The same duty rests upon the religious superior with regard to his clerical subjects, as we shall see. B. Spiritual Retreats (c. 126) Every secular priest must make a spiritual retreat at least once every three years. This is common law, but diocesan rulings may require annual retreats. The length of the retreat, where it shall be conducted, the grant­ ing of exemptions—these matters are reserved to the local Ordinary. No priest can presume exemption, but he must have a written permission to be excused. Concerning religious clerics in this matter, as in all other duties to be mentioned, they are governed by laws of the Code contained in that part which treats of the duties of religious (cfr. p. 358). We are speaking here mainly of secular clerics. C. Canonical Hours (c. 135) All clerics in major orders are bound to recite the divine office daily. This obligation starts with the day and hour coinciding with the reception of subdeaconship. In reciting the office clerics must use the Roman breviary. They must follow the calendar of their own diocese except when outside of the diocese. In this latter case, they may say their office according to the calendar of their own diocese, or may follow the calendar of the universal Church, or the calendar of the diocese where they are visiting, unless they be beneficcd clerics, in which case they keep to the calendar of their diocese and benefice {Decreta authentica, η. 2682). D. Clerical Obedience (c. 127) All clerics are held to a special obligation to respect and obey their Ordinary. This obligation they assume when they receive first 176 CLERICAL PRIVILEGES AND DUTIES tonsure, it being contained in an implied contract. The obligation is explicit and more binding upon priests. At the time of sacerdotal ordination, to the question proposed by the bishop ; Promittis mihi et successoribus meis . . . obedientiam et reverentiam, they reply: Promitto. The range of canonical obedience is coextensive with the bishop’s right to command. And the bishop’s right to command appears to be limited only in two respects: 1) he can command noth­ ing contrary to divine or higher ecclesiastical law; 2) he can com­ mand nothing which docs not in some way refer to the salvation of souls or the sacred ministry. Thus, it seems that the bishop would exceed his authority were he to define the manner in which a cleric should invest his personal goods, or to whom he must bequeath them. On two points only docs the Code particularize: 1) whenever, and as long as, in the judgment of the Ordinary the needs of the Church so require, and provided no lawful exemption can be offered, clerics must accept and faithfully discharge any office the bishop may give them (c. 128); 2) the bishop can command a cleric to remain in the diocese (cfr. infra p. 179). E. Theological Examinations and Conferences (c. 130-131) After their ordination to the priesthood, clerics are expected to continue their sacred studies privately. To this end the law calls for periodical examinations of the junior clergy, and for theological conferences in the case of all priests. Examinations—Upon the completion of their theological course all priests must undergo an examination in the different branches of sacred theology annually for at least three vears. Only the Ordinary may exempt from this obligation for a just cause. A just cause is not to be found in the fact that the priest may be a pastor. The Ordinary also determines the subject matter, the time, place and other circumstances of the examinations. That the law may have a sanction it is ruled that, other things being equal, the results of these examinations should be considered when determining preferment for vacant offices and benefices. Conferences—Conferences involving at least questions of moral theologj- and liturgy- must be held frequently (saepius) every year, both in the episcopal city and in each deanery. They must be attended by all secular priests, and by all religious pastors and assistant pastors (vicarii cooperatores) even though these CLERICAL PRIVILEGES AND DUTIES 177 belong to an exempt religion and have conferences in their own houses. Religious who are not pastors or assistant pastors, even though they have the diocesan faculties, need not attend the diocesan conferences if they have conferences in their own houses. If they have no such conferences of their own, they too must attend the diocesan conferences (Code Comm. Feb. 12, 1935; Acta XXVII 92). If the diocesan conferences cannot be held, written solutions must be sent in by all who are otherwise obliged to attend. No cleric, bound to attend the conferences, may hold himself excused without previous explicit exemption granted by the local Ordinary. F. Clerical Celibacy (c. 132, 133) By clerical celibacy is meant the obligation imposed upon all clerics in major orders to observe perfect chastity, and consequently to abstain from marriage and its use. The obligation is one of ecclesiastical law only. Introduced by custom, it did not become obligator}· in the universal Latin Church until the Council of Trent. Today, in the Oriental Church celibacy begins to bind only with the reception of the diaconatc. Those who as subdeacons, or prior thereto, contract marriage arc permitted to live a married life in holy orders. But bishops must abstain from the use of marriage, and must send their wives to some nunnery. The obligation of celibacy is one derived from the virtue of religion so that clerics in major orders violating this law not only sin against the sixth commandment but are guilty also of sacrilege, as canon 132, §1 explicitly states. Whether or not the sacrilege results from the violation of a vow made implicitly by the cleric simultaneously with the reception of subdcaconship, which seems to be the more common opinion, or rather from the ecclesiastical law which constitutes subdeacons in the hierarchy of sacred persons, is disputed. It matters little whence the obligation derives; it is one which in any case can be traced to the virtue of religion so that violations of chastity, whether consisting of external or internal acts, whether consummated or not, will have a two-fold malice. Clerics in major orders arc not only forbidden to contract marriage, but major orders constitute an invalidating impediment to marriage. Clerics in minor orders may validly contract marriage, but they are automatically reduced to the lay state thereby, unless they 178 CLERICAL PRIVILEGES AND DUTIES can prove that they were forced into marriage against their consent and that as a result the marriage is invalid. A married man is impeded from holy orders as long as his wife is living. However, with her consent, and with Apostolic dispensa­ tion. the man could be promoted to orders, but in that case use of his marriage rights would be forbidden. If a married man in good faith was promoted to orders without Apostolic induit, believing, e. g., his wife to have died during a prolonged absence, he will be forbidden to exercise his orders without a new Apostolic induit, once it is discovered that his wife is still living. Concerning the obligation of celibacy with respect to those clerics who are forced into major orders through grave fear (cfr. p. 184-185). . Lest clerical chastity be endangered, the law moreover pre­ scribes that clerics shall not keep in their homes, nor visit, women who are not above suspicion. Ordinarily, they are permitted to keep in their homes, e. g., as housekeepers, those women who will not arouse suspicion. To this class belong: 1) those women with whom the cleric has a natural bond of close kinship, namely, mother, sister, aunt, etc.; or 2) women of good reputation and advanced age, by the latter term the common doctrine understanding a woman at least 40 years old. With these women, a cleric is not forbidden to consort because, as a rule, they are presumed to constitute no danger to continency. This, however, is only a presumption of law. The presumption may be overthrown in some particular case by adverse rumor. In that case the Ordinary has the right to enjoin upon the cleric that he dismiss the woman from his home, or desist in his visits to her, as the case may be. Should a cleric stubbornly refuse to comply, the law will presume him guilty of concubinage, and the penalties established against clerical concubinage in canons 2359 will apply. G. Common Life (c.134) A potent safeguard against violations of celibacy is common life among the clergy. This is highly lauded by the Code, and even made obligatory where the practice has already been introduced, as it has generally with us in the United States. H. Clerical Garb and Tonsure (c. 136) Clerical garb—All clerics must wear a becoming clerical garb. CLERICAL PRIVILEGES AND DUTIES 179 The form of the clerical dress is not prescribed by common law, but is left to local law and custom. In virtue of the decree of the 111 Plenary Council of Baltimore, n. 77, priests in this country must wear the cassock and Roman collar in the rectory and church, and for civil life the Roman collar and a suit of black or sombre hue arc prescribed. The law prescribing a distinct garb for clerics is directed to the end “that by the simplicity’ of their external dress clerics may manifest the interior simplicity and holiness of their lives.” Clerical tonsure—Unless local law or custom rules otherwise clerics are bound to wear the clerical tonsure. In the United States the custom of wearing the clerical tonsure has not been introduced. While the Code at the same time enjoins upon clerics that they avoid all vanity and ostentation in the dressing of the hair, it docs not forbid the wearing of a wig. This, however, is forbidden by liturgical law, since a cleric needs an Apostolic induit to celebrate Mass with covered head. Penalties—Clerics in minor orders who, after being admonished by the Ordinary’, fail for a month thereafter to resume the clerical garb, or to renew the tonsure, are ipso facto reduced to the lay state. Clerics in major orders found guilty of the same offenses are subject to suspension, and if they remain contumacious, they may be deposed from office (c. 2379). I. Residence (c. 143-14+) All clerics arc bound to reside in their proper diocese. The obligation is implied in that of canonical obedience to their bishop, for how can clerics obey orders and discharge duties if they cannot he found? This applies then to all clerics, even those who have no office or benefice in the diocese. Those who hold offices and benefices arc bound to the law of residence not only in virtue of obedience to the bishop, but also in virtue of justice. But absences from the diocese if not for a notable length of time are permitted by common law. What constitutes a notable length of time is not determined in the Code. This must be left to local law. In default of specific local legislation, some authors define it as a period of three months, others of two months, and still others of one month. Where the absence is not for a notable length of time permission to leave the diocese is not required in the case of clerics who are 180 CLERICAL PRIVILEGES AND DUTIES without office or benefice. But if they have an office or benefice, especially a parochial benefice, the law is stricter. Those clerics who with lawful permission have left the diocese temporarily can be recalled by their Ordinary at any time. But in this matter the proper Ordinary must take into consideration canonical equity, i. e., he must have a just cause for recalling the cleric, e. g., the need of priests in the diocese, but he must be willing to compensate the cleric if such recall involves financial loss. Like­ wise, other circumstances of time, place, persons, etc., must not be overlooked so that the recall may not offend against equity, e. g., one’s good name must be protected. A cleric, even though he has left his own diocese temporarily and with due permission, may always be dismissed by the Ordinary of the diocese where he is staying. It is supposed that incard ination has not taken place in this latter diocese. §3. Negative Duties A. Surety (c. 137) Clerics are forbidden to give bail even on their lay holdings without previously consulting the Ordinary. To give bail, to go bond, to give surety, means to bind oneself by contract to satisfy for the debts of another person should the latter default. Before a cleric can give bail on church goods, the advice of the Ordinary docs not suffice, but his consent is necessary. The reason is that we are dealing here with what amounts to an alienation of ecclesiastical goods. This subject is discussed in Book III of the Code, and of our manual. B. Occupations Unbecoming to Clerics (c. 138, 140, 141) Many things which a layman could do with impunity the Church considers unbecoming to the clerical state. The Code has some general prohibitions on this head, and because they arc so general, the Ordinary is allowed to supplement them by more specific rulings. Hence, every priest ought to consult in this matter the statutes of the diocese, the decrees of his provincial council, and of the III Plenary Council of Baltimore. 1. Clerics may not practise unbecoming trades and arts. By these canonists understand such professions as persons of low rank engage in, citing as instances the trade of butcher, saloon-keeper, etc. CLERICAL PRIVILEGES AND DUTIES 181 2. They may not indulge in games of chance with money at stake. Occasional card playing, and other games of chance, however, are not forbidden with small amounts of money to lend a reasonable degree of interest to the recreation. 3. They may not bear arms except for self-protection. But occasional quiet hunting is permissible. Under no circumstances may they take part in the chase (venatio clamorosa). On the same score clerics may not enlist voluntarily in the militia. But in those countries where military service, or training, is compulsory for all male citizens of a certain age. clerics may, with the permission of their Ordinary, enlist before their prescribed term, the sooner to be rid of this obligation. 4. Politics—The Code refers to this subject indirectly when it says that clerics shall not in any way lend aid to civil war or disturb­ ances of the public order. The original draft of the canon read : “in intestine wars and political contentions.” The clergy are not hereby forbidden to vote as citizens. Neither are they dissuaded from interesting themselves in an active way, and in the capacity of clerics, in those political issues where the rights of the Church, or the principles of true morality arc endangered, e. g., the parochial school question, the dissemination of birth control litera­ ture, divorce legislation, etc. In questions purely political, however, which have no bearing even indirectly unon religious issues, e. g., the form of government, the manner of holding elections, the traffic control system, etc., clerics arc Strictlv forbidden to interfere. 5. Theatres, etc.—Clerics may not attend performances (spec­ tacula), dances (choreae), or festivities (pompae) which do not become them, or where their presence may cause scandal. By spectacula we must understand shows, horse races, bull fights, prize fights, etc. Under pompae would come parties, picnics, excursions, bazaars, etc. It will he noticed that these recreations are not forbidden the clergy absolutely, but only: 1) if they arc unbecoming in themselves, and offensive to Christian decency; 2) if while not in themselves censurable, yet they are so in the opinion of the public as far as clerics are concerned. Hence, current public opinion in the particular locality must be considered, and this can change with time. Thus, certain condemna­ tions issued in the past by bishops and councils, may now have become obsolete in view of changed public opinion. 6. Taverns, etc.—Clerics must not enter taverns (tabernae) or 182 CLERICAL PRIVILEGES AND DUTIES other places of the like nature without necessity, or without a just cause approved by the local Ordinary. The law here seems to refer to low-class establishments where the sight of a clergyman would cause wonderment or ridicule. It has in mind the type of tavern found in the Middle Ages when the law, of which the present canon is a restatement, was framed. Nothing prohibits clerics from putting up at reputable hotels, or from dining at respectable restaurants. C. Occupations Alien to the Clerical State (c. 139; 142) While not always unbecoming, the following occupations are nevertheless foreign to clerics. They are justly prohibited, either because discredit is too often cast upon the clerical state as a whole by reason of the blunders of the few, or because some of these occupa­ tions tend to distract clerics from the sacred ministry. Without permission of the Holy See clerics arc forbidden: 1. To practice medicine or surgery. They may, however, study these subjects. And they may give medical and surgical assistance in an emergency. Missionaries in foreign countries will find the Apostolic induit, as here required, a convenience, if not a necessity. 2. To act as civil notaries. 3. To assume political offices which involve the exercise of lay jurisdiction. If the jurisdiction is administrative, e. g., the office of governor, mayor, commissioner, etc., or juridical in character, e. g., the office of judge, magistrate, justice of the peace, the Holy See’s permission is required. If the office involves onljr legislative powers, e.g., that of congressman, or state representative, or senator, the permission of the Holy See is not required. In this case permission must be obtained both from the cleric’s own Ordinary as also from the Ordinary where the election takes place. But clerics may not without papal permission run for the office of senator or deputy in those countries where there exists a special prohibition of the Holy See to this effect. In the United States the Catholic clergy do not compete for public offices. 4. To engage in business or trading. This they may do neither personally nor through others. But we must distinguish between natural and artificial trading. Natural trading consists in buying a commodity, and without materially changing the same, selling it at a higher price. This is CLERICAL PRIVILEGES AND DUTIES 183 forbidden when donc solely for profit, as when one speculates with the stock market. It is not forbidden when done for reasons of thrift, as where a householder sells at a higher price that which in good faith he had bought in excess of his personal needs. Artificial or industrial trading consists in the buying of com­ modities, changing their form, and selling them at a higher price. Such trading also is forbidden when labor is hired to change the form of the product, otherwise not. And so, a cleric may personally cultivate his own land. He may even hire labor to gather the natural fruits and products, even though these are sold later on. As to stocks and bonds, a few words will suffice. While all canonists allow a cleric to buy bonds, since this is nothing more than a safe investment of money in view of interest only, not all would permit him to invest in stocks. When a person buys stocks or shares of the capital investment held by a company, he receives in turn not interest but dividends in proportion to the amount invested by him. 'These dividends represent profit realized by the company in the carrying on of its business. Accordingly, some authors teach that the buying of stocks is equivalent to natural trading; in this case the company trading as agent of the shareholder. But the more common opinion of canonists today inclines to the view that the buying of stock is not forbidden on the score of trading. The responsibility of the average stock­ holder, they say, is so negligible that one can hardly consider the company his agent. It is the board of directors, not the individual stockholders, who determine the policies of the company. An agent, on the other hand, is one who must consult his principal in all matters of importance (cfr. Woywod, o.c. under this canon). Without permission of their proper Ordinary clerics are for­ bidden: 1. To act as agents of laymen in the management of the latter’s property. Hence, they cannot without permission assume the office of guardians over minor children. But clerics may, and must, administer the goods of their ben­ efice. A pastor is by reason of his office the official agent of the parish as concerns its temporalities, always, of course, under the supervision of the local Ordinary. 2. To accept secular non-political offices which necessitate the rendering of accounts. Hence, they may not be presidents, secretaries, trustees, etc., of banks, nor hold office in cooperative associations, even though composed exclusively of Catholics. 3. To act as lawyer, or procurator in a civil court. To act as 184 CLERICAL PRIVILEGES AND DUTIES procurator means to represent «another, and to answer, or testify in his name, to take the case into one’s own hands and see it through, cither because the principal cannot appear personally in court, or does not wish to do so. From the very nature of their office, both a proxy and lawyer are largely responsible for the success or failure of a suit. Hence, clerics should not undertake these duties for laymen. Neither may clerics testify in a lay court against the accused in a criminal trial if the charge is one which involves grave personal punishment. Here the Ordinary’s permission is required. But in other cases they may depose without such permission, e. g., in a civil suit. ART. IV. Reduction of Clerics to the Lay State Clerical privileges and rights arc lost, and clerical obligations in general cease, with the reduction of a cleric to lay communion. Definition—By the reduction to the lay state we understand the juridical privation of all rights and privileges which attach to the clerical state by law. Incidentally this carries with it tnc cessation of all clerical obligations saving celibacy. There can be no theologi­ cal but only a canonical reduction to the lay state, or degradation. That is to say, the power of orders is never lost by the laicizing of a cleric. This is in virtue of divine law so far as concerns the powers attaching to episcopal consecration, the priesthood and the diaconate, for these orders arc of divine origin and have imprinted on the soul an indelible character. In the case of subdeacons and of clerics in minor orders, the power received through ordination is not lost upon degradation, and this in virtue of the positive will of the Church. From which it follows that if clerics either in major or minor orders return to the clerical ranks after being laicized, they need not be reordained. Modes of reduction—It is necessary to distinguish here between clerics in major orders and those in minor orders. Clerics in major orders arc reduced to the lay state: 1) By rescript of the Holy See (c. 211). Here it is supposed that the cleric has petitioned a dispensation from the obligation of celibacy, e. g., a subdeacon who has grave reasons for not pursuing his clerical studies any further. 2) By decree or sentence of the Holy See (c. 211, §1). Here CLERICAL PRIVILEGES AND DUTIES 185 it is supposed that the cleric questions the validity of his ordination, or the presence of the obligations attaching thereto, e. g., on the plea of having been ordained through grave force or fear. Concerning the procedure followed in such cases, cfr. p. 631. 3) By the penalty of degradation (c. 211,§1). But this penalty can never be inflicted except for certain crimes determined by law, and then only by way of a formal trial. Clerics in minor orders are reduced to the lay state: 1 ) At their request, namely, if the}· wish to quit their clerical studies and return to the world (c. 211, §2). 2) By decree of dismissal. This is issued by the Ordinary when he judges that a cleric cannot qualify for promotion to sacred orders (c. 211, §2). 3) By the operation of law in punishment, (c. 211, §2). Thus, a cleric in minor orders is ipso facto reduced to the lay state: 1) if he attempts marriage; 2) or fails to obey the Ordinary’s pre­ cept that he resume the clerical garb; 3) or voluntarily enlists in military service; or 4) is dismissed from his religion. Effects of reduction—A cleric who has been laicized loses all church offices, benefices, ecclesiastical rights and privileges, and is forbidden forever to wear the clerical garb (c. 213, §1). Return to the lay state frees a person from all clerical obliga­ tions, saving celibacy attaching to major orders (c. 213, §2). One so laicized retains his power of orders forever. But all ecclesiastical jurisdiction he may have had ceases automatically. Reinstatement into the clerical ranks calls for an Apostolic induit in the case of a cleric in major orders. The Ordinary can take back a cleric in minor orders after having first made diligent investigation concerning the man’s life and morals (c. 212). Section Two ON CLERICS IN PARTICULAR In Section I we considered the rights, privileges and duties common to all clerics. In Section II it will be our purpose to learn the powers, rights, privileges and duties which belong to certain clerics by reason of the office which they hold in the Church. We shall divide Section II into 6 chapters as follows: 1) On the Roman Pontiff; 2) On the Pope’s assistants at Rome; 3) On the Pope’s assistants outside of Rome; 4) On bishops; 5) On the bishop’s assistants in the government of the diocese; 6) On the bishop's assistants in the sacred ministry. Chapter I THE ROMAN PONTIFF We shall consider: 1) the nature of the papal power; 2) major causes reserved to the Pope; 3) the various forms and names of papal acts; 4) the election of the Roman Pontiff; 5) how the papal office becomes vacant; 6) the titles and insignia of the Pope; 7) the Pope as temporal sovereign. 186 THE ROMAN PONTIFF 187 ART. L Nature of the Papal Power (c.218) Although the power of orders is no greater in the Pope than in any other bishop, yet his jurisdiction in the Church is supreme. For that reason he is called the sovereign pontiff or bishop. That the Roman Pontiff enjoys not alone a primacy of honor, but also the primacy of jurisdiction, was defined as a dogma of faith by the Vatican Council (July 18, 1870) against the doctrines of the Protestant Reformers. For while it is true that Christ entrusted the salvation of souls to the entire Apostolic College, thus constituting each apostle a bishop in the Church: “Going, therefore, teach all nations . . .” (Mat. XXVIII, 18-19), and “Whatsoever you shall bind upon earth, it shall be bound also in heaven . . .” (Mat. XVI11, 18), still, in order that the episcopate might be one and undivided, He set Blessed Peter over the rest of the Apostles, charging him in a special manner with the universal care of souls, both of the clergy: “Feed My Lambs,” and of the faithful: “Feed My Sheep” (John XXI, 15-17), and granting him powers commensurate with the adequate discharge of so grave a commission: “Thou art Peter, and upon this rock I will build My Church. . . . And I will give to thee the keys of the Kingdom of heaven. And whatsoever thou shalt bind upon earth, it shall be bound also in heaven . . .” (Mat. XVI, 18-19). Hence the successors in the Holy See of Rome which was founded by the Apostle Peter obtain his primacy over the whole Church. The so-called Catholic Gallicans, Febronians, and Josephists, acknowledged in the Pope a primacy of jurisdiction, but their con­ cept of that authority was not in accord with Catholic tradition, and so it remained also for the Vatican Council to refute the errors of the latter by explaining more in detail the nature of the papal power. As summarized in c.218 that jurisdiction is said to be: 1) supreme; 2) universal; 3) immediate; 4) ordinary; 5) episcopal, and 6) independent of all human authority in its exercise. The jurisdiction of the Pope is supreme in the Church. The Pope has no superior; he is above a general council, and from his decisions there lies no appeal. His is a universal jurisdiction by­ reason: 1) of territory; 2) of subject matter, extending to both doctrine and discipline; 3) of persons, bishops as well as the lower clergy and the laity being subject thereto. It is immediate jurisdic­ ISS THE ROMAN PONTIFF tion in the sense that it can be exercised not only upon appeal but in the first instance and without the intervention, or previous assent, of the local bishop. It is ordinary jurisdiction being attached to the papal office by divine law. It has not been delegated to the Pope by the bishops, much less by the faithful. Lastly, it is independent in its exercise of all human authority, particularly that of the secular ruler. For we have seen that the Church universal is a sovereign society with respect to the State. Consequently, the appellatio ab abusu, the placitum regium, and other rights claimed by the Gallicans, Josephists, etc., can no longer be defended by Catholic theologians after the Vatican Council. The Church, then, is a monarchy by the will of Christ, i. c., by divine law, and so it must always remain. Λ monarchy is a society in which supreme authority is vested in one person. Moreover, the Pope is an absolute monarch in the sense that no human authority can place limits to the papal power within the spiritual scope of the Church. It is limited only by the divine law. And since the Pope is the sole infallible interpreter of the divine law, it belongs to him to determine the limits of his jurisdiction. Hence, the Code devotes only four canons to the papal office. It is easier to state what the Pope cannot do, than to list those things which he can do. The papal primacy is in no way detrimental to the ordinary and immediate jurisdiction by which all other bishops govern their dioceses in virtue of divine law. That two superiors exercise jurisdiction over the same subjects need not result in confusion, provided the proper subordination of the lower to the higher power be observed. Xor have the bishops become the mere vicars of the Pope, in virtue of the above doctrine, for they still retain original jurisdiction in all matters not covered by the common law, and even here they are the ordinary executors of papal law, enforcing its observance in their respective dioceses, and being constituted judges of the first instance practically in all disputes where the common law is at issue. ART. II. Major Causes As a matter of fact, however, the Pope does not exercise the plenitude of his power. He reserves only major causes to himself. Of these major causes some arc such by their very nature, e. g., the canonization of saints which implies infallibility, a prerogative which the Pope cannot delegate; others are such in virtue of positive law. THE ROMAN PONTIFF 189 As the Church in time became more and more centralized in the See of Rome, the list of major causes grew to correspondingly greater proportions. We shall point out by way of illustration the following: In matters of faith and morals', the Pope alone, or jointly with an ecumenical council, defines dogmas (c. 1323, §2) ; he safeguards sound doctrine through the agency of the Holy Office (c. 247, §1), prohibits dangerous books in the universal Church (c. 1395, §1 ) ; watches over sacred preaching, (c. 252) ; establishes Catholic univer­ sities (c. 1376) ; passes final judgment in cases of beatification and canonization (c. 1999), etc. In matters of discipline', the Pope alone enacts common law, or jointly with an ecumenical council ; dispenses from the same by original right; concludes concordats with lay rulers; regulates what­ ever pertains to public worship including the sacraments, the sacra­ mentels, and sacred liturgy in all its details; determines feast days; enacts marriage impediments; erects, divides, and suppresses dioceses and ecclesiastical provinces; appoints bishops; is the supreme admin­ istrator of ecclesiastical goods; reserves to himself judgment in the first instance of certain trials. Moreover, to the Pope is reserved absolution from a large number of censures. ART. III. Various Forms and Names of Papal Acts The Roman Pontiff governs the Church by laws, decrees, re­ scripts and sentences. These are for the most part written acts, and whether issued immediately by the Pope or by the Roman Curia, they may without exception be designated papal acts. They assume a variety of names depending upon their content and form. By reason of content we have the following: 1 ) A constitution proceeds immediately from the Pope. It concerns matters of either doctrine or discipline. It establishes a permanent norm in some very weighty matter; e.g., the Const. Ineffabilis Deus (1854) proclaiming the dogma of the Immaculate Conception; the Const. Providentissima Mater Ecclesia promulgating the Code of Canon Law in 1917. 2) A motu proprio, like a constitution is given by the Pope also. However, it does not concern faith, but only discipline, and establishes law in matters of less importance than does a constitution. The Motu proprio, c. g.. Cum juris canonici created the Pontifical Committee for interpreting the canons of the Code. 190 THE ROMAN PONTIFF 3) Litterae Apostolicae, like a motu proprio, are executive acts that concern disciplinary matters. Only they do not carry the clause or title motu proprio. Besides, they are issued by the Congregations as well as by the Roman Pontiff. They concern canonizations, the creation of cardinals, the erection of new dioceses, etc. 4) Epistolae Pontificiae do not concern matters of discipline at all. Rather, the Pope employs these when he wishes to speak rather as a father or teacher than as a lawgiver. In them he explains sound doctrine, though not infallibly as in a constitution, or he may exhort, instruct, congratulate, etc. When directed to the whole Church, they are called encyclicals; if but to some individual, they are called epistolae or litterae pontificiae. Sometimes, they arc issued by the Congregations and then are called epistolae circulares. 5) However, the acts most proper to the Roman Curia arc called decrees, instructions, declarations, decisions, resolutions and sentences. A decree proceeds only from a Congregation, and consti­ tutes administrative, not formal, law. The same is the nature of an instruction, though the latter is more directive and less preceptive than is a decree. Rescripts are answers to requests for favors, e. g-, for a dispensation, a privilege, or an answer to some doubt. But if the answer is general in tone, and directed to the whole Church, though it originated through a particular individual’s doubt, it is called a declaration, and is an administrative interpretation of the law. Decisions and resolutions also interpret the law but result from a litigation between two or more interested parties, the discussion being handled in an extrajudicial summary manner before some Congrega­ tion. All the above are acts of Congregations, although a few may proceed from the Sacred Penitentiary, which is a tribunal. Sentences, on the other hand, are the written decisions of the Roman Rota handed down at the conclusion of formal court trials. By reason of form we have the following nomenclature’. 1 ) A papal bull is a document of parchment to which is affixed a leaden seal by means of a cord of silk. On one side of the seal appear the heads of Sts. Peter and Paul, and on the other side the name of the reigning Pontiff. Bulls arc the most solemn of all papal documents in point of external form. They are the vehicles of constitutions. 2) A papal brief is likewise a document of parchment, but the seal it carries is one of red wax upon which is impressed the image of St. Peter drawing a net from the sea. Hence, it is called the seal of the fisherman’s ring. A brief deals with matters of importance second only to that of bulls. THE ROMAN PONTIFF 191 3) Leiters are documents which arc directed to particular individuals. They may be given by the Pope or the Congregations. They arc written on ordinary paper, and carry but a seal of ink. 4) A decree takes the external form of letters. This is true likewise of rescripts. 5) A chirograph is a document written in the Pope’s own hand, as the name implies. 6) Allocutions arc formal addresses delivered by the Pope, generally in the presence of the Sacred College of Cardinals present in consistory. They often reveal the policy of the Holy See on current political or social problems. 7) Oracles (mvie vocis oracula) in the usual meaning of the word arc favors which the Pope grants by word of mouth to in­ dividuals in private audiences. They are not issued in writing, and hence are not rescripts. The favors can be used in the external forum as well as in the internal forum. But in the former case the Ordinary may demand proof of their grant. The testimony of two witnesses present at the audience, or the testimony of one cardinal is good proof. ART. IV. Election of the Roman Pontiff (c. 219) As Christ, our Lord, made no provision for St. Peter's successor, the manner of choosing the Pope had to be determined by human law. Whether or not the Pope can designate his successor is not certain. On this question there are three opinions: some authorities would allow this right without restriction ; others would deny him the right always and under all circumstances; others again, and these seem to express the more common view, would permit the Pope to designate his successor if exceptionally grave circumstances so war­ ranted, c. g., during a schism. Saving the doubtful case in which it is claimed that Felix IV (526-530) appointed his successor, the Popes have always been chosen by election. The laws, however, governing papal elections have varied. In the beginning the bishops of Rome, like all other bishops, were elected by the neighboring bishops and the local clergy. The laity participated to the extent of bearing testimony to the good character of the candidate. At times the emperors intervened, at 192 THE ROMAN PONTIFF first to maintain peace and order, later without such pretext and as a matter of supposed right. This led to abuses so that Nicholas II (1059) reserved the election of the Pope to the cardinal bishops. Alexander III (1179) admitted cardinal priests and deacons. From that day until the present the Pope has been elected by the cardinals only, to the exclusion of all other clergy, the laity and the civil rulers. To expedite the elections (for at times they were protracted over months and years) Gregory X introduced the law of the conclave by decreeing that the cardinals were to assemble in the palace where the Pope had died, and this not later than ten days following his death, and that all communication with the outside world was to be forbidden until the new Pope had been elected. The present discipline governing papal elections is contained in the Constitution Pacante Sede A postalica (Dec. 25, 1904). The document is appended to all editions of the Code. Its main features are substantially those of the former law: 1) Cardinals only have the right to vote. But all cardinals are admitted even though they be excommunicated, suspended or interdicted. The object of this ruling is to preclude all doubts concerning the validity of the election. For the same reason it is ruled that neither grave fear, force, simony or any other cause can be alleged to contest the validity of votes, unless the adverse influ­ ence was so great as to deprive an elector momentarily of the use of reason. 2) If the Pope should die while an ecumenical council is in session, the election of the new Pope is still reserved to the cardinals. It docs not belong to the council. 3) Upon the death of the Pope the cardinals must wait 10 days before beginning the election. This term may be prolonged eight more days (Motu proprio, Mar. 1, 1922; Acta XIV, 145). Cardinals who arrive after the election is begun, may still be admitted to the conclave. 4) The election should take place at Rome as a rule. But it is left to the Sacred College to choose another place if, due to exceptional circumstances, the liberty of the election might be endangered. 5) The election can be conducted by inspiration (acclaim), by compromise, or as usually happens, by ballot. A two-thirds majority is required to elect. Two ballots are held daily, one in the morning, another in the afternoon until that majority is reached. For validity it suffices that the candidate be a baptized Catholic man. For licitness he should possess those qualifications which one THE ROMAN PONTIFF 193 naturali) expects in the incumbent of so important an office. No law prescribes that the Pope be an Italian, although as a matter of fact, after the Pontificate of Hadrian VI (1522-1525), a German by birth, all the Popes have been Italians. Nor is it required that the candidate be a cleric, much less a cardinal, although since the time of Urban VI (1378) all have been cardinals. ART. V. The Papal Office, How Vacated By divine law the Pope, once elected, holds office for life. But in addition to the death of the incumbent, the papal office may become vacant if the Pope should resign, or fall into heresy, or lose the use of reason. Should the Pope decide to resign his office, the resignation to be effective need not be confirmed by the cardinals or by any other authority in the Church. The reason is that the Pope has no superior to whom he could tender his resignation. The only instance of resignation is that of Pope Celestine V who resigned the papal office in 1294. If the Pope should happen to fall into heresy, he is no longer a member of the Church, much less its head. It is understood that the Pope cannot be guilty of heresy when he speaks infallibly r.v cathedra. The supposition is only possible should the Pope teach heretical doctrine in a private capacity. How the fact of heresy and of consequent vacancy of the papal chair would be determined is difficult to understand. The Pope cannot be deposed by any human authority, ecclesiastical or civil, not even by an ecumenical council. The reason is that he can be judged by no man (c. 1556). ART. VI. Papal Titles and Insignia From his primacy of jurisdiction there logically accrues to the Pope the primacj’ of honor in the Church. This external honor finds expression in certain titles, and insignia. As to titles, the supreme ruler of the Church is called: 1) Pope, from the Greek Pappas, or Father; 2) Sovereign, or Roman 194 THE ROMAN PONTIFF Pontiff; 3) Bishop of Bishops; 4) the Holy Father; 5) His Holi­ ness. On the other hand, the Pope in official documents frequently cefers to himself as the Servant of the Servants of God. The Pope also is bishop of the diocese of Rome, comprising the City of Rome and approximately 40 square miles of surrounding territory; arch­ bishop of the Roman ecclesiastical province lying between the prov­ ince of Capua and that of Pisa; primate of Italy; and patriarch of the Western, or Latin Church. These latter offices and titles have gradually lost all practical value and significance, being now ab­ sorbed by the all-embracing office of the primacy. As to insignia and observances, the following merit chief consideration: 1) the white cassock and skull-cap which the Pope wears habitually about the Vatican palace, and the red hat which he wears in the Vatican gardens; 2) the tiara, or triple crown, which is worn only at certain solemn liturgical functions; 3) the fisherman’s ring; 4) the pastoral staff ending in the form of a cross, and without the usual curvature which mystically implies a subordi­ nate and limited authority; 5) the kissing of the Pope’s foot or rather the kissing of the relics sewn into the slipper of his right foot, although this ceremony is now observed as a rule in certain liturgical functions only, the kissing of the hand being substituted; 6) preced­ ence over all secular rulers, and precedence of his envoys over the envoys of secular rulers, this honor being confirmed also by inter­ national law. ART. VII. The Pope as Temporal Sovereign With the break-up of the Roman Empire in the West, and the resultant destruction of civilization, the people of Rome and the surrounding territory instinctively turned for civil protection to the Pope, who in those turbulent times was the only authority capable of maintaining law and order. Thus began what is known as the temporal sovereignty of the Popes. Later emperors not only recognized the justice of such title, but some, like Pipin and Charle­ magne, annexed provinces, which they had conquered, to the original papal domain. Thus, in time his domain came to comprise under the name of the Papal States, or the States of the Church, approxi­ mately the entire central part of what is now modern Italy. Over this territory the Popes ruled in peaceful undisputed possession for ten centuries. At the beginning of the nineteenth cen­ THE ROMAN PONTIFF 195 tury there arose among the Italian people a desire for national unity. Under the leadership of the House of Savoy various provinces and kingdoms were gradually united, and even the papal states were invaded. On the 20th of September, 1870, the City of Rome itself was taken, and made the capital of United Italy. While the Popes protested against the forcible seizure of the Patrimony of St. Peter, especially against the occupation of the Eternal City, at the same time they gave due recognition to the desire of the Italian people for a united nation. The difficulty was how to provide for the liberty of the Pope as the head of an inter­ national society on the one hand, without on the other hand restoring the Papal States, or even a part thereof, which in the opinion of many Italians would have amounted to national suicide. This constituted the so-called Roman question. By the Latcran Pact of Feb. 11, 1929, the Roman question was solved. What is now known as Vatican City was restored to the Pope by the King of Italy, together with full sovereign temporal authority therein. A strip of land approximately 120 acres, called Vatican City, embraces St. Peter’s Basilica and Plaza, the Vatican palace and gardens, a radio station, a railroad, postal service, mint, printing press, a small armed force, and other features designed to secure to the Pope complete temporal independence from any and all civil rulers, so that he may henceforth stand forth before the entire Catholic world as the subject of no secular power, and consequently need not fear to be suspected of partiality, or as capable of local secular pressure in framing the policies of the Church. It should be noted that the Pope is temporal sovereign only with respect to the territory called Vatican City. Those persons who are actual residents in that small territory arc alone the Pope’s temporal subjects. All other Catholics, the world over, owe to the Pontiff only a spiritual allegiance. In matters temporal they show loyalty and obedience to the laws and rulers of their respective country only. The complete Latin text of the Lateran Pact together with illustrative maps is found in Acta, XXI; 209-274. Chapter II THE POPE'S ASSISTANTS AT ROME So numerous are the duties involved in the universal government of the Church that the Roman Pontiff has need of many assistants. Some of these reside at Rome and arc called the cardinals. Others reside outside of Rome and are called papal legates, vicars and prefects Apostolic, administrators Apostolic, archbishops, etc. First wc shall consider those who assist the Pope at Rome (in Curia), i. c., the cardinals. ART. I. The Cardinals of the Holy Roman Church In this article we shall consider cardinals chiefly in themselves. In the next article we shall explain how the cardinals advise the Pope as heads of the various departments of the Roman Curia, and how they govern the Church during the vacancy of the papal office. Definition—Cardinals are those dignitaries who during the lifetime of the Pope (sede plena) are his immediate aides and intimate counsellors, and who upon the death of the Pontiff (sede vacante) have the exclusive right to elect a new Pope (c. 230). §1. Origin of Cardinals Etymologically cardinal derives from cardo, which means a hinge or pivot. As early as the fifth century we find mention of cardinals in the Church. They were those clerics who had received a permanent appointment to some church as distinguished from itinerant and temporarily assigned clerics. Upon the former class of clerics, rather than upon the latter, was the church conceived as revolving and depending, much as a door is supported on its hinges. Such cardinal clergy were found both at Rome and elsewhere. Hence to distinguish the former from all others it was customary to speak of the cardinals of the Holy Roman Church. 'That qualification, 196 CARDINALS 197 however, became superfluous after Pius V (1568) decreed that the name of cardinal must be reserved exclusively for the Roman car­ dinals, although the lengthier expression is still adhered to out of respect for tradition. By the eighth century the Roman cardinals form three classes: cardinal-bishops, cardinal-priests and cardinal-deacons. All consti­ tuted the presbytery of the Bishop of Rome and assisted h;m in liturgical functions at the major Roman Basilicas. The cardinal­ bishops were the Ordinaries of the seven suburbicarian secs in the vicinity of Rome, namely: Ostia-Velletri, Porto, Santa Rufina, Albano, Palestrina, Sabina and Frascati. Cardinal-priests were those clerics in priestly orders who had charge ot certain churches of Rome in which the sacraments of baptism and penance were administered, and which for that reason were probably the parish churches of those times, being for some unknown reason called tituli. Cardinal-deacons were those deacons assigned to certain districts of Rome called deaconries (diaconiae) into which the City had been divided for the more effective supervision of the poor and their needs. Moreover, each deaconry had its hospice and chapel (church). With the reservation of papal elections to the cardinals in 1179, the dignity of the latter begins to excel that of all other prelates, including bishops, archbishops, primates and patriarchs. Henceforth, cardinals become the chief advisors of the Pope in the government of the universal Church. Originally all cardinals were bound to reside in Rome, for they were clerics assigned permanently to certain Roman churches with duties which called for residence. But in course of time dispensations were granted from the law of residence so that bishops and arch­ bishops outside of Rome could be created cardinals without the necessity of relinquishing their sees to come and live at Rome, their churches at Rome being cared for by vicars. In this way the whole Catholic world is now represented at papal elections and the Pope in turn is constantly advised on the state of the universal Church through his cardinals resident in all parts of the world. §2. Number and Classes of Cardinals (c. 231) The Sacred College of Cardinals numbers 70 members as fixed by Sixtus V (1586). This does not mean that temporary vacancies cannot occur in the Sacred College, or that the number can never be more than 70, although as a matter of fact that number has never been exceeded since it was decreed by Pope Sixtus. 198 CARDINALS The historic triple division of cardinals into three classes remains, 6 members belonging to the order of cardinal-bishop, 50 being cardinal-priests, and 14 cardinal-deacons. But unlike early times this division of rank no longer coincides with the hierarchy of orders. For while prior to the 13th century every cardinal­ bishop was a bishop in orders, every cardinal-priest was a priest in orders and every cardinal-deacon a deacon by ordination and nothing more, today only those cardinals belong to the rank of cardinal­ bishops who occupy the six suburbicarian secs. All other residential bishops, who may be cardinals, are cardinal-priests. They arc bishops indeed of their respective dioceses, but only priests of the Roman Sec. Likewise cardinal-deacons arc usually priests in point of orders and sometimes they are even bishops. Whether a cardinal belongs to one or the other rank in the Sacred College depends upon the church which the Pope assigns to him at his creation. If he receives a suburbicarian diocese, he is a cardinal-bishop; if a titular church in Rome he is a cardinal-priest; if a diaconal church, he is a cardinal-deacon. But a cardinal-deacon may, ten years after his creation, ask that he be promoted to the rank of cardinal-priest, i. e., that he be given a presbyteral church ; and the senior among the cardinal-priests may, upon the vacancy of a suburbicarian diocese, ask that he be made a cardinal-bishop, i. e., that he be assigned to some suburbicarian diocese. This is known as the right of option (jus optionis) (c. 236). Cardinal-bishops precede cardinal-priests, and these precede cardinal-deacons. Within the same rank precedence is determined by priority of promotion to the cardinalate. §3. Creation of Cardinals (c. 232-233) Cardinals arc chosen by the Roman Pontiff from all parts of the world. In this choice the Pope is dependent neither upon the consent of the other cardinals, nor upon that of the secular rulers. Although before creating new cardinals the Pontiff is wont to ask the Sacred College: Quid vobis videtur? this is now considered a mere ceremony devoid of all juridical content. The qualities required in a cardinal are these: 1) He must be a priest, either secular or religious, eminent in learning, piety and prudence; 2) lie must be born of lawful wedlock, and legitimation by subsequent marriage of the parents will not suffice; 3) He must be free of irregularities, and though he may have CARDINALS 199 been dispensed from one or more irregularities for promotion to the priesthood, or even to the episcopate, this will not qualify him for the cardinalate; 4) He must not have a child or grandchild (supposing he had entered the priesthood a married man) ; 5) He must not be related to any living cardinal in the first or second degree of consanguinity, a provision designed to preclude nepotism. Cardinals are created when their names arc announced in secret consistory (cfr. below what is meant by a consistory). In a private audience shortly thereafter the Pope gives the new cardinals the red biretta. 'Then in a public consistory held about three days after the secret consistory, the cardinals receive the red hat and swear fidelity to the Pope. On the same day, in a second secret consistory, the Pope closes the lips of the new cardinals at the beginning of the session, signifying thereby that they must abstain from expressing their opinions for the present; he then gives them the cardinal’s ring, assigns to each a cardinalitial church in Rome, appoints them to various departments of the Roman Curia if they arc to reside in Rome, and finally opens their lips thus giving them the right to cast a deliberative vote in ecclesiastical affairs, the same as other cardinals. If at the time of his creation a cardinal is absent from Rome, the Pope through a special envoy, presents him with the red biretta. but the new cardinal must promise upon oath to visit the Pontiff within a year. Sometimes the Pope creates a new cardinal by declaring this fact in secret consistory, but for some reason known only to himself withholds the name of the candidate, e. g., because of political condi­ tions, or because the cleric has an office which he cannot conveniently resign for the present to come and reside at Rome supposing he is to be a cardinal in Curia. This is called the reservation in pectore. The object of the procedure is to accord retroactivity to the creation with the consequent right of the cardinal so created to take preced­ ence over all cardinals subsequently created. But should the Pope die without publishing the name of the cardinal, the reservatio in pectore loses all juridical effect. §4. Titles, Insignia and Privileges of Cardinals (c. 239) The title of Eminence was given to cardinals by Urban VIII (1630). When referring to a cardinal, then, one speaks of His Eminence, and when addressing a cardinal one says Your Eminence. 200 CARDINALS The distinctive insignia of cardinals are chiefly: I) the red hat given them by Innocent IV in 1245; and 2) the red (scarlet, crimson, purple) mantle and biretta permitted them by Paul II in 1464. al­ though, if we except the Jesuits, all religious cardinals retain the color of their religious garb. As to the privileges of cardinals the most outstanding is that of precedence. Cardinals rank second only to the Pope in dignity. Even though they lack the episcopal character, they precede all other pre­ lates in the church including bishops, archbishops, primates and pa­ triarchs. This privilege granted them by Eugene IV (1428) rests upon the principle that in every organized society it is jurisdiction (governing authority) rather than any other element which deter­ mines rank and precedence. Now, in point of jurisdiction cardinals excel bishops, for the jurisdiction of cardinals being a participation of papal sovereignty extends to the universal Church, whereas that of bishops is restricted to their respective territories. Moreover, bishops are judged by cardinals, not vice-versa. Cardinals enjoy, in addition, a number of other privileges, a list of which, mostly of a liturgical nature, is found in c. 239. Privileges of a juridical character are found scattered throughout the various parts of the Code, e. g., the privilege of being judged by none but the Pope, the privilege of exemption from all ecclesiastical penalties, etc. §5. Authority of Cardinals (c. 240-241) Cardinals have a two-fold authority: 1) with respect to their titular churches; 2) with respect to the Church universal. With respect to their titular churches cardinal-bishops have the same authority in their suburbicarian dioceses as other residential bishops. Cardinal-priests and cardinal-deacons at one time possessed a quasi-episcopal jurisdiction over their churches, but at the present time they retain that authority only as regards liturgical matters, e. g., they can, in their churches, exercise the pontificals, impart the epis­ copal blessing, confer tonsure and minor orders, etc. But in nonliturgical matters, i. e.. in matters purely disciplinary, they have only a paternal or domestic power, i. c., they can lay down rules con­ cerning divine worship in their churches, correct abuses, discipline the clergy, etc., but they cannot punish infractions with ecclesiastical penalties in the strict sense of the word, this being the right of the Cardinal-Vicar of Rome. CARDINALS 201 In respect to the Church universal the authority of cardinals during the occupancy of the papal chair differs from that which they exercise during the vacancy of the Holy Sec. Sede plena, the cardinals form the senate, as it were, of the Roman Pontiff, and their jurisdic­ tion is mostly deliberative as we shall sec at greater length in Art. II. Sede vacante, cardinals have the exclusive right to elect a new Pope, and so their jurisdiction here is for the most part electoral. During the vacancy, the government of the Church docs not pass to the Sacred College of Cardinals in toto; e. g., the cardinals cannot enact new general laws, nor can they revoke existing laws. At the most they can transact only those matters for which they possess ordinary faculties sede plena. Should some exceptionally grave and urgent matter call for their examination, a special procedure, outlined in the Constitution l açante Sede dpostolica must be followed. For the rest, that Constitution has been so designed as to hasten the election of the new Pope as far as reasonably possible, so that few matters will be found so grave and urgent which cannot await the deliberation and sanction of the new Pontiff. ART. II. The Roman Curia Cardinals counsel the Pope chiefly in their capacity as heads of the various departments of the Roman Curia. §1. The Roman Curia in General Etymologically curia is derived from cura. It denotes the care with which public affairs should be administered. Borrowed from the Roman Law, the word came to mean, in the church, the presby­ tery or that body of clerics who assisted the bishop in the government of the diocese. Like all other bishops, the Pope had his presbytery whom he consulted in the more difficult matters of local administration. It seems to have included all the Roman clergy. This was the original papal curia. With the gradual recognition of the Papal Primacy the govern­ ment of the Church became more and more centralized at Rome. Recourse to the Pope from all parts of the Catholic world began to increase, whether for privileges, dispensations, interpretations of the 202 THE ROMAN CURIA law, or as appeals from adverse decisions of local authorities. Thence­ forth, the Popes judged it more appropriate to turn to the cardinals alone as to their chief advisers. .About the 12th century the Roman Curia no longer meant Roman presbytery but the consistory of cardinals. A consistor}' (consedere) is a gathering of the cardinals in the presence of the Pontiff. From the beginning these consistories were held three times a week for the transaction of business that concerned the whole Church. It was soon discovered, however, that all questions and matters could not be taken care of in this way. Special offices, then, were created for the drafting of documents, notably the Apos­ tolic Chancery. Litigated matters could not be decided without first hearing the parties and gathering evidence, which function came to be reserved to the auditors of the Roman Rota. Even purely admin­ istrative business became too complex to be settled only three times a week. Wherefore, Sixtus V in 1587 divided the entire mass of administrative business among various committees of cardinals. There­ after, consistories became daily less frequent, and at the present time they are held only when the Pope chooses to convene them, usually at intervals of several months. Consistories arc secret, semi-public, and public. In the secret consistories, so-called because only the cardinals are present, the Pope creates new cardinals and bishops, erects new dioceses and provinces, and renders allocutions on grave current problems con­ fronting the Church. At semi-public consistories both bishops and cardinals vote on cases of beatification and canonization, this being, of course but a consultive vote. Public consistories are purely cere­ monial occasions attended not only by cardinals and bishops, hut by the papal diplomatic corps, and other distinguished and privileged persons. At these the Pope confers the cardinal’s hat, or solemnly decrees a canonization, or grants a formal reception to sovereigns and their ambassadors. Origin of Curia in its present form—The Roman Curia’s present structure as consisting of Congregations, Tribunals and Offices, owes its origin to Sixtus V in the 16th century. Already under the consistory system there had existed special Offices and Tribunals, namely the Apostolic Chancery, the S. Penitentiary and the Roman Rota, as organs distinct from the consistory, for the drafting of documents, and the exercise of judicial jurisdiction. Thus, in time there remained only administrative matters to be transacted in consistory. When even these became too numerous and complex to be examined only three times a week in consistory, Sixtus V by THE ROMAN CURIA 20Î his Constitution Immensa, Jan. 22, 1587 distributed the entire mass of administrative business among 15 Congregations, or committees, of cardinals. He thereby became the founder of the Roman Curia in its present form as consisting of Congregations, Tribunals and Offices. Reform of the Curia—During the centuries which followed, the Curia underwent substantial changes. The Rota's jurisdiction was restricted to civil law disputes arising within the papal states, while its contentious jurisdiction in matters ecclesiastical was taken over by various Congregations, so that the latter became both admin­ istrative and judicial organs. Moreover, the administrative jurisdic­ tion of the Congregations and Offices frequently overlapped. There­ fore, Pius X, by his Constitution Sapienti consilio (June 29, 1908), reformed the Curia in its entirety, reestablishing the Rota as a court for ecclesiastical cases, assigning only administrative authority to rhe Congregations, and accurately defining the jurisdiction of each Congregation and Office, so that no longer would authority in two or more organs be duplicated. The Constitution Sapienti consilio was supplemented by two other documents: Lex propria S. Romanae Rotae et Signaturae Apostolicae, and the Ordo servandus in Sacris Congregationibus, Tribunalibus et Officiis Curiae Romanae. The Code has introduced but a few changes in the Curia as thus reformed. We shall speak in turn of: 1) The Congregations; 2) the Tribunals of the Roman Curia, and 3) The Offices of the Roman Curia. §2. The Roman Curia in Particular A. The Sacred Congregations ( 1 ) The Congregations in General Definition—The Sacred (Roman) Congregations may be defined as standing committees of cardinals to whom the transaction of certain ecclesiastical matters has been assigned permanently by the Roman Pontiff. '1'here are 11 Congregations and each has competency over a definite category of matters. The number of cardinals who form any given Congregation depends upon the will of the Pope. Although in addition to cardinals other prelates compose the personnel of the Congregations, such as major and minor officials, consultors, agents, lawyers, etc., it is essentially the cardinals who are the Congregations, for they alone constitute the deciding board, and saving the authority of the Pope, they have the final word in all questions which come up for consider­ 204 THE ROMAN CURIA ation. It is through such deliberations that the cardinals are said to aid and advise the Pope. Functions of the Congregations—Being the administrative departments of the Holy Sec the functions of the Congregations are: 1 ) to sec to the enforcement of the common law through timely decrees and instructions; 2) to grant favors, privileges and dispensa­ tions from the law; 3) to issue general and particular interpretations of the law; 4) to decide controversies between litigating parties in an administrative way, {via administrativa, disciplinari, oeconomica), their findings being called decisions, not sentences (c. 243, §1). Wherefore, against the decrees of the Ordinary, whether these take the form of precepts, prohibitions (injunctions), appointments, removals, penalties, etc. an aggrieved party does not appeal to the archbishop, or to the Rota, hut he has recourse to the competent Congregation. The reason is that a decree is an administrative act, not a judicial one, and as such it can be reviewed only by a higher administrative organ. It is only when the Ordinary cither in person or through his representative, e. g., the diocesan Official, decides a matter by way of the formal trial outlined in Part 1, Book IV of the Code, i. e., when he acts in the capacity of judge and not in the capacity of administrator, that appeal is taken from his sentence to a higher judicial organ, i. c., to the archbishop’s court in the second instance, and to the Rota in the third instance (c. 1601). How the Congregations proceed—Of the cardinals who com­ pose any one Congregation, one is the supreme moderator. He is called the cardinal-prefect except in three Congregations where the Pope himself is prefect, namely, the Holy Office, the Consistorial Congregation and the Congregation for the Oriental Church. Here the presiding cardinal is called the cardinal-secretary. The presiding cardinal is more immediately assisted by certain non-cardinal prelates, i. e., the major officials who are usually called the secretary and sub-secretaries. But where the presiding cardinal is himself the secretary as explained in the preceding paragraph, the first assistant is called the assessor. Ordinary matters, e. g., dispensations of minor moment, are seen to by the presiding cardinal. More difficult matters are deliberated in the Congresso, i. e., a meeting of the cardinal-prefect and his major officials. To the Congresso also it belongs to prepare the agenda for the full committee. The Full Congregation {Congre­ gatio plena) is a meeting of all the cardinals assigned to the Con­ gregation, who by majority vote decide questions which are beyond the competence of the Congresso. Such matters arc. e. g., administra­ tive interpretations of the law concerning doubts submitted by some THE ROMAN CURIA 205 ' Ordinary, decisions in more difficult litigated controversies, the grant­ ing of unusual favors, the enactment of general decrees and instruc­ tions, etc (c. 244). The Congregations represent the Pope and act by his authority. In certain matters they receive ordinary faculties, and then their jurisdiction is ordinary, though vicarious. For all other matters the Pope must be first consulted. In the first case the rescript will read: vigore facultatum a Domino nostro tributarum ; in the second case: facto verbo cum Sanctissimo. Force of the Congregations’ acts—Authentic (administrative) interpretations given by the Congregations may be general in nature or particular. The former are called decrees, or declarations, the latter rescripts. General interpretations bind universally ; particular interpretations constitute law only for the parties whom they con­ cern. If, later, these are inserted in the Acta AP. Sedis, and all mention of the diocese, or the religion to which they were originally directed is omitted, they must be construed as general interpretations. Otherwise, their mere insertion in the Acta accords to them no such universal value, hut the decisions serve only as directive norms for Ordinaries, and other superiors, in similar cases. Decisions in the strict sense of the word by which litigations are settled, e. g., between two beneficiaries, likewise constitute law only for the interested parties. Where the same decision is repeatedly issued, it will, in time, form the style and practice of the Roman Curia, from which it would be rash to depart in the same set of circumstances contemplated by the decisions. Against the administrative decisions of the Congregations the aggrieved party cannot appeal to the Kota, since one never appeals from a decree but only from a sentence; nor does one invoke the authority of a judicial organ to review the acts of an administrative organ. Hence, strictly speaking, there lies neither appeal nor recourse from the decisions of the Congregations, not even to the Pope. The reason is that either the Pope ratified the decision, or if not, that the Congregation, using ordinary faculties given them by the Pope, acted in his name, and in so doing they constituted one person with the Pontiff. However, one may ask for a beneficium novae audien­ tiae, and whether this new hearing will be granted him depends upon the circumstances of the particular case, e. g., whether substantial arguments have been overlooked, whether new evidence is at hand, etc. The doctrinal decrees of the Holy Office are not infallible, but they are binding none the less. They call for a reverential assent of the mind, which assent must be both internal and external. 206 THE ROMAN CURIA as dogmatic theology explains more at length. One who rashly denies such doctrinal decisions, while he may not incur the censure of heresy, is considered proximus haeresi. How the Congregations are approached—Any member of the Church is free to communicate directly with the Congregations, cither personally or by letter. But saving litigations, and cases which belong to the S. Penitentiary, a private individual docs best to invoke the aid of his Ordinary. The reason is that the Holy See is not wont to grant favors today unless the petition carries the Ordinary’s en­ dorsement. Moreover, the Ordinary is usually appointed the execu­ tor of the rescript. Wherefore, religious organizations of men must have a procura­ tor general (a man of their own community) resident at Rome, who transacts all affairs of his religion with the Holy See. Religious communities of women deal with the Holy See either through the local Ordinary, or through their Cardinal-Protector. Secular clerics and laymen deal with Rome through their proper local Ordinaries. Petitions addressed to the Holy See may be written in any language, although Latin, Italian and French are preferred, for unless the officials assigned to the particular Congregation are famil­ iar with the language employed, delays in finding a competent translator must be expected. No set form of words is prescribed in drawing up a petition. It suffices to state one’s case in clear and simple diction. The peti­ tioner should add his name and address, and the name of his diocese. For petitions directed to the S. Penitentiary, cfr. p. 213. While the petition itself is addressed to the Holy Father, the envelope which contains the petition is addressed to the Roman Curia, cither to the presiding cardinal, or to the Congregation competent in the matter of which he is head. The address of the Holy Office, and of the S. Penitentiary is: Palazzo del S. Uffizio, Piazza S. Uffizio, Rome, Italy. That of the Congregation for the Oriental Church, the Ceremonial Congregation, the Congregation for Extraordinary Affairs, the Apostolic Camera, the Secretariate of State is: Vatican Palace, Città del Vaticano (Vatican City). That of the Propaganda: Palazzo di Propaganda Fide, Piazza di Spagna, Rome. That of the Signatura, of the Rota, and of the Datary is: Palazzo della Dataria, Via della Dataria, Rome. That of all Congregations save those already mentioned is: Palazzo delle Congregazioni; Piazza S. Callisto, Rome. There remains only the Apostolic Chancery housed in its ancient building at Piazza della Cancelleria, Rome. Note—Communications to any Congregation, Office or Tribunal can also be sent simply to Fafican City. THE ROMAN CURIA 207 (2) The Congregations in Particular 1. The Congregation of the Holy Office (c. 247)—Instituted by Paul III in 1542, as an agency for defending the Catholic Faith against Protestant errors (truly a holy office), this Congregation until 1908 went under the title of The Roman and Universal Inquisi­ tion. It is competent in all matters that concern faith and morals. It judges all crimes involving heresy, or the suspicion of heresy. To this extent it is a tribunal and has its own rules of procedure. In other respects it is a Congregation, and proceeds administratively. It is also competent, and exclusively so, in all questions that relate to the Pauline Privilege, and the impediments of mix^i religion and disparity of cult. It alone grants dispensations from these impediments. It alone tries marriage cases brought to Rome in any instant of hearing, if one party to the contested marriage is a non-Catholic (H.O., Jan. 27, 1928; Acta XX, 75). It belongs to the Holy Office to prohibit books, and to place them on the Index. It also grants the necessary permission to read such books. Prior to 1917 this function had been reserved to the Congregation of the Index. In that year the latter was suppressed by Benedict XV. The Holy Office alone grants dispensations from the Eucharistic fast for priests who wish to celebrate Mass without fasting. If any­ one wishes for good reason to communicate habitually without fasting, e. g., for reasons of illness, the Congregation of the Sacraments is competent, and for religious the Cong, of Religious. 2. Consistorial Congregation (c. 248)—Founded by Sixtus V in 1588 this Congr. as its name indicates prepares the agenda for consistories. It secs to the appointment of fit candidates to vacant secs, examines quinquennial reports of bishops, and hands over to the Congr. competent in the matter any reports which seem to call for disciplinary correction in the form of decrees or instructions. This competency of the Consistorial Congr. is taken over by the Congr. of the Propagation of the Faith for missionary countries, e. g., as concerns the appointment of vicars and prefects Apostolic, the examination of their reports, etc. 3. Congregation of the Sacraments (c. 249)—Founded by Pope Pius X in 1908 this Congregation has charge of the universal discipline concerning the sacraments, a jurisdiction which formerly had been distributed among a number of Congregations and Offices. 208 THE ROMAN CURIA hatever concerns the sacraments or the Mass, saving the jurisdiction of the C. of Rites on points of rubrics, belongs to the C. of the Sacraments. It grants dispensations in this connection, e.g., marriage dispensations, dispensations for orders; it enacts legislation to correct abuses in the administration of the sacraments and the celebration of Mass; it alone judges concerning the obliga­ tions attaching to major orders, and the validity of such orders in particular cases, although if the matter is too involved it may remand the case to some competent tribunal to be examined by way of a formal trial ; it alone administratively examines ratum et nonlonsummatum cases, and grants dispensations in this matter, unless the case being too involved, it should decide to hand it over to some competent tribunal for judgment by way of a formal trial. But the Holy Office alone is competent to dispense celebrants, whether religious or secular, from the eucharistie fast; to examine ratum et non-consummatuni cases where a non-Catholic is involved ; to try ordination cases arising from defect of rites. 4. Congregation of the Council (c. 250)—As its name implies this Congregation was instituted to enforce the decrees of the Council of Trent. With the reform of the Curia by Pius X ( 190S). its function in this respect was divided among the various other Congre­ gations so far as concerns matters belonging to the province of each. At present the C. of the Council supervises the universal discipline of the secular clergy and the laity, enacting general decrees in this respect and granting appropriate dispensations and induits, c. g., from fast and abstinence, the observance of holydays, etc. It has charge of whatever concerns pastors, canons, confraterni­ ties and other pious unions, even though these are found in the churches of religious and depend upon religious superiors. It has jurisdiction over pious legacies, pious works. Mass stipends, benefices, ecclesiastical offices, church goods, and property, diocesan assessments and taxes, and ecclesiastical immunities, e. g.. if permission is sought to sue a cleric in the civil court where such permission must be obtained from Rome. This Congregation also examines and approves the acts and decrees of plenary and provincial councils. It is to this Congregation that an aggrieved secular cleric or a layman has recourse; religious take recourse to the C. of Religious. Secular clerics and laymen in countries subject to the Propaganda have recourse to the Congregation of the Propagation of the Faith. 5. Congregation of Religious (c. 251)—Sixtus V instituted THE ROMAN CURIA 209 two Congregations, one for the affairs of religious, the other for the affairs of bishops. In 1601 both were fused into one Congregation under the title of the Congregation of Bishops and Regulars. In 1908 Pius X suppressed the Congregation and assigned the affairs of religious to the new Congregatio negotiis religiosorum sodalium prae­ posita, transferring to the C. of the Council jurisdiction over the affairs of bishops. To the Congregation of Religious belong all questions which relate to religious either as individuals or as bodies, namely, their government, discipline, studies, temporal goods, privileges, etc. This Congregation is exclusively competent in all controversies wherein a religious is either plaintiff or defendant, although if the other party is a non-religious, the Congregation has the right to remand the case to some other Congregation if this seems expedient. The C. of Religious has jurisdiction over Third Orders Secular, and over those organizations of men or women who live a life in common without vows, e. g., the Oratorinns. All dispensations requested by religious are granted by this Congregation, saving the competency of the H. O. to dispense religious celebrants from the Eucharistic fast. 6. Congregation of the Propagation of the Faith (c. 252)— Sometimes called the Congregation of the Propaganda, or simply The Propaganda, this Congregation was instituted by Gregory XV in 1622 to strive for the return of heretics and schismatics to the Church. Its jurisdiction was later enlarged to propagate the faith among infidels in missionary countries. Pius X in 1908 withdrew from its jurisdiction the following countries and subjected them to the common law: England, Scotland, Ireland. Canada, Nova Scotia and the United States. In general this Congregation has the duty of fostering the Catholic religion in missionary countries, i. c., in those countries where the hierarchy has not yet been established, or restored, or if established or restored, has not attained such perfection as to warrant its subjection to the common law. For such countries the Congregation of the Propagation of the Faith possesses the totality of jurisdiction enjoyed by all the other Congregations combined, saving 4 exceptions: 1) doctrinal matters belong to the Holy Office; 2) marriage cases belong to the respective Congregations of the Holy Office and the C. of Sacra­ ments; 3) religious as missionaries are subject to the Propaganda, but as religious they are subject to the C. of Religious; 4) Orientals are subject to the C. for the Oriental Church. 7. Congregation of Sacred Rites (c. 253)—Instituted by Sixtus 210 THE ROMAN CURIA V, this Congregation in 1908 took over, in addition to its original duties of safeguarding rubrics, that of the Congregation of Indul­ gences and Relics, so far as relics arc concerned. Jurisdiction over indulgences was given to the S. Penitentiary, and the Congregation of Indulgences and Relics was suppressed. The Congregation of Rites enforces the liturgical laws of the Latin rite. To this end it enacts general decrees and instructions, issues interpretations, and grants privileges, induits and dispensa­ tions, e. g., the induit of the privileged altar, of a private oratory, of a portable altar, dispensations to celebrate black Masses on other­ wise prohibited days, etc. Moreover, it has exclusive competency in cases of beatification and canonization, and proceeds in this respect more like a court than an administrative organ, following the rules of procedure outlined in Part II, Book IV of the Code. 8. The Ceremonial Congregation (c. 254)—Founded by Sixtus V, it has authority to regulate and supervise the sacred functions of the papal chapel, and all functions performed by cardinals outside of the papal chapel. Moreover, it has charge of the ceremonies prescribed at the papal court, e. g., in the reception of diplomats. Finally, it decides all controversies concerning precedence among cardinals, as also among legates accredited to the Holy Sec from the various nations. 9. Congregation for Extraordinary Ecclesiastical Affairs (c. 255)—After the disturbances brought about by the French Revolution, Pius VI in 1793 created a temporary committee for The Extraordinary Affairs of the Church in France. Pius VII (1814) enlarged its scope to embrace all matters of grave moment in which relations of Church and State were involved, making it at the same time a permanent Congregation, and giving it its present general name. The competency of this Congregation extends to all matters which involve Church and State. Hence, it draws up concordats, erects and divides dioceses whenever the civil authorities must be consulted, and appoints fit candidates to such dioceses. Furthermore, it studies cases assigned it by the Pope involving civil legislation and other civil acts which endanger the liberty, or otherwise concern the interests, of the Church. 10. The Congregation of Seminaries and Universities (c. 256) —Sixtus V instituted the Congregation for the Roman University, but at the same time charged it with the supervision of all other THE ROMAN CURIA 211 pontifical universities, e. g., the University of Bologna, Paris, etc. Benedict XV gave to this Congregation jurisdiction with regard to seminaries, an authority which until that time (1915) had belonged to the Consistorial Congregation. 'This Congregation watches over all that pertains to the govern­ ment, discipline, temporal administration, and studies of seminaries, saving the competency of the Propaganda. It alone, moreover approves of new pontifical universities and faculties, sanctions their statutes, grants them authority to confer degrees, and may itself confer degrees upon any man of exceptional learning. 11. Congregation for the Oriental Church (c. 257)—This Congregation, created by Benedict XV, previously had formed a section of the S. C. of the Propagation of the Faith. Its competency is personal, extending to all matters which affect Catholics of the (Uniate) Oriental Rites.· It possesses the totality of all jurisdiction possessed by all other Congregations, saving the competency of the H. Office, and of the S. Penitentiary (S. C. Ori­ ent. July 26, 1930; Jeta XXII, 394). The Congregation is exclusively competent in questions which simultaneously involve a Catholic of the Latin and of an Oriental Rite, e. g., to grant dispensations for such marriages in the event of an impediment. The Congregation proceeds administratively, but cases which appear too complex it remands to some tribunal for examination by way of a formal trial. In virtue of the Motu proprio issued Mar. 25, 1938, Pius XI gave the Oriental Congregation competency likewise over Catholics of the Latin Rite in the following regions: Egypt, Cyprus, Greece, Dodecanese, Iran, Iraq, Lebanon, Palestine, Syria, Transjordania, Asiatic Turkey and that part of Thrace which is subject to Turkey. But the jurisdiction of the H. Office, S. C. of the Sacr., S. C. of Rites, S. C. of Seminaries and Univ., and of the S. Penitentiary remains intact (Jeta XXX, 154). Note—The principles governing the competency of the various Congregations are not always clear in practise. Accordingly, c. 245 provides that should doubts arise in this matter, such controversies arc to be decided by a special committee of cardinals appointed by the Pope in each case. Since the promulgation of the Code the following answers have been issued : 1) Decisions regarding the obligations attaching to major orders, and the validity of sacred ordination in the case of a religious, belong to the C. of the Sacraments and not to the C. of Re­ ligious. (Dec. 7, 1922 Jeta XV, 39). 212 THE ROMAN CURIA 2) The C. of the Council and not the Consistorial Congrega­ tion is competent in questions concerning: 1) priests as students or teachers in lay schools; 2) associations of the laity and their federa­ tions. On the other hand, the Consistorial Congregation and not the C. of the Council is competent concerning: 1) the erection and suppression of chapter dignities; 2) revenues and goods belonging to the episcopal rnensa (Dec. 7, 1922; Acta XV, 39). 3) All questions or recourses (instantiae) affecting the rights or interests of religious as individuals or as a body belong exclusively to the C. of Religious. Hence to it and not to the C. of the Council does it belong to grant sanationes, condonationes and reductiones in reference to chaplaincies and legacies found in the churches of re­ ligious, even though not entrusted to the religious in their substance but only as to their administration and fulfillment, but only to the extent that these sanationes, etc. involve administration and fulfill­ ment. The C. of Religious alone grants religious candidates dispen­ sations in the matter of sacred ordination, e. g., from age. studies, etc. The same Congregation dispenses religious who because of sickness or other causes request dispensations relating to the celebration of Mass (.Mar. 24, 1919; ./,-m XI, 251). 4) The C. of Seminaries and Universities, and not the C. of the Council, may grant permission to alienate property belonging to diocesan seminaries (Dec. 7, 1922; Acta XV, 39). Finally, let it be added that should a petition be sent mistakenly to the wrong Congregation, it will be remanded by the same to the competent Congregation, although such mistakes naturally delay an answer. B. Tribunals of the Roman Curia The Tribunals are the judicial departments of the Holy See. They are three: 1) the Sacred Penitentiary; 2) the Roman Rota; 3) the Signatura Apostolic. Here, too, the cardinals figure as the counsellors of the Pope, if we except the Rota whose judges are prelates (monsignori), and whose sentences need not the approval of the Pope. The S. Penitentiary deals exclusively with matters of the internal forum, the other two tribunals exclusively with matters of the external forum. 1. The Sacred Penitentiary (c. 258)—This is a tribunal of mercy, and as its name implies, deals for the most part with peni­ tents. It is not a Congregation, for the reason that but one cardinal, not a number pf cardinals (congregatio) is assigned to it. Its chief, though not exclusive, function is to hear and pardon penitents, hence, it is a tribunal above all. THE ROMAN CURIA 213 As a distinct organ of the Roman Curia the S. Penitentiary dates from the 13th century, when, due to the increasing number of sins and censures which the Pontiffs reserved to themselves for judgment, penitents from all parts of Christendom began to have recourse to Rome for pardon. It was gradually developed in its organization to include besides the Cardinal Major Penitentiary, and a number of minor confessors (penitentiaries), certain non­ cardinal officials, e. g., the regent, theologian, canonist, etc. The S. Penitentiary not only absolves, and grants faculties to absolve, from reserved sins and censures which are occult, but its jurisdiction covers the entire field of the internal forum, both sacra­ mental and extra-sacramental, provided the case is occult, t. e., pro­ vided only the relief of conscience is sought. For, if the matter is public, it must go for cognizance to one of the Congregations or T ribunals. Wherefore, in occult cases the S. Penitentiary grants favors of ever}' kind : 1 ) absolution from all sins and censures reserved to the Holy See; 2) dispensations from vows, oaths, irregularities and marriage impediments; 3) ratifications (sanationes) for invalid acts, e. g., invalid marriages, invalid appointment to offices, etc.; 4) com­ mutations of vows, fasts, and obligations of every kind; 5) condona­ tions of illegally acquired ecclesiastical goods; 6) reductions of obli­ gations which are difficult of fulfillment, e. g., Mass obligations due to the devaluation of a country’s currency. This tribunal, moreover, settles doubts of conscience when they are submitted to it. Finally, this Tribunal has jurisdiction over indulgences, their grant, use, etc. The S. Penitentiary admits petitions in any language. If a con­ fessor applies to the S. Penitentiary for his penitent, and the subject matter does not permit the revelation of the penitent’s name without infamy, fictitious names must be employed for the penitent e. g., Titius, or Titia. But the confessor must give his own name and address, or some other name and address to which the answer should be forwarded. For the rest, direct recourse to the S. Penitentiary is not so necessary as one might suppose, because our Ordinaries have ample faculties, cither ordinary or delegated, to deal with the cases which frequently occur. 2. The Roman Rota (c. 259)—This tribunal exercises juris­ diction for the external forum of a contentious nature. It is the ordinary supreme court of the Church. In a few cases it is a court of first instance. At the present day marriage cases occupy most 214 THE ROMAN CURIA of its attention. More will be said of the Rota and the Signatura in Book IV of our manual. 3. The Apostolic Signatura (c. 259)—This court is composed of cardinals only, whose function it is to hear exceptions brought by parties to a trial against the judges (auditors) of the Rota. C. Offices of the Roman Curia The Roman Offices are the ministerial departments of the Holy Sec. They arc charged primarily with the drafting and for­ warding of Apostolic Letters, although some enjoy a measure of administrative jurisdiction as well. The supreme moderator in each office is a cardinal, so that even in these departments the cardinals aid and counsel the Pope. 1. The Apostolic Chancery (c. 260)—This Office may be con­ sidered coeval with the Roman Church itself, although only from the 13th century does its organization resemble that of the present day. In course of time all the other Offices of which we shall speak were formed into separate and independent organs, having originally formed so many different sections of the Chancery. Today the function of the Apostolic Chancery is reduced to the drafting and forwarding of papal bulls, e. g., documents containing appointments to vacant dioceses, the erection of new dioceses and provinces, etc. It also draws up other papal letters which deal with exceptionally grave matters. But it can issue neither bulls nor Apostolic Letters save by instruction of the Consistorial Congrega­ tion, or the Pontiff, depending upon the content of the particular document in question. 2. The Apostolic Datary (c. 261)—As the name indicates, this Office originally had the duty of affixing the date to documents issued by the Chancery (the word being derived from datare, not dare). When it became an independent Office in the 15th century it began also to grant the very favors which certain documents carrying its date contained. At the present day the Apostolic Datary dates only those docu­ ments which emanate from that Office, its functions now being: 1 ) to issue Letters for the conferment of reserved non-consistorial benefices, a list of which is found in c. 1435; 2) to examine the fitness of candidates for said benefices; 3) to care for pensions and burdens which the Pope may have imposed in the conferment of those benefices. 3. The Apostolic Camera (c. 262)—This Office cares for the temporalities of the Holy See. During the vacancy of the papal chair THE ROMAN CURIA 215 it regulates whatever pertains to the conclave. The presiding officer is called the Cardinal Camerlengo of the Holy Roman Church. 4. The Secretariate 0/ State (c. 263)—The presiding cardinal in this Office is the Cardinal Secretary of State. He is the Minister of Foreign Affairs, as it were, and since his duties are of the most confidential nature his office ceases upon the death of the Pope. This office is divided into three sections; the first section trans­ mits to the C. for Extraordinary Ecclesiastical Affairs those matters which the Pope has ordered to be examined by that Congregation, and therefore, it has as its president the secretary of that congrega­ tion; the second section concerns itself with ordinary matters of papal diplomacy, and its presiding officer is called the Substitute; the third section drafts and dispatches Apostolic Briefs for matters submitted to it by the competent Congregations, saving the Briefs addressed to secular rulers for which a special Office exists. It is the function of the Secretariate of State to direct all diplomatic relations between the Holy See and civil governments; to instruct papal legates and examine their reports; to confer papal distinctions, c. g., that of the Order of St. Gregory, of the Knight of Cape and Sword, honorary prelacies, etc.; to transmit papal blessings, and to answer the numerous messages of loyalty, congratu­ lations, etc. which the Pope receives constantly from all parts of the world. 5. The Secretariate of Briefs to Princes and of Latin Letters— The duties of this Office arc : 1 ) to write and forward Apostolic Briefs to secular rulers and persons of high rank ; 2) to compose papal letters less solemn in form than Briefs; 3) to prepare papal allocu­ tions and encyclicals. Its presiding officer is the Cardinal Secretary of State (c. 264). Chapter III THE POPE'S ASSISTANTS OUTSIDE OF ROME Christ, the Lord, placed the Roman Pontiff over all nations to be their supreme shepherd. But since it is not possible for the Pope to traverse the whole world, and to discharge this pastoral duty in person, he has need of assistants who, residing in various parts of the world, share his supreme power and office in the care and feeding of the portion of the llock assigned to them. We have spoken of the Pope's assistants at Rome, or in curia, i. e., the cardinals. It remains in this chapter to speak of his assist­ ants outside of Rome, or extra curiam. These exercise that jurisdic­ tion which the sovereign Pontiff would himself exercise were he present in person. They arc: papal legates, patriarchs, primates, archbishops, vicars and prefects Apostolic, administrators Apostolic, inferior prelates, and councils. ART. I. Papal Legates (c. 265-270) Definition—A papal legate (from legare, to send) is a cleric sent by the Roman Pontiff to some province or nation with the ordinary power to transact certain affairs inherent in the Apostolic office. 'I'he right of the Pope to send envoys to all parts of the world results from his primacy of jurisdiction in the universal Church. Legates classified—There arc four classes of legates: 1) legates a latere; 2) nuncios; 3) internuncios; 4) Apostolic delegates. A legate a latere, as the word itself implies, is a cardinal sent by the sovereign Pontiff with that title (a latere) to represent him as an alter ego, sent from his very side as a most familiar intimate, but who has only that amount of authority that the Pope chooses to give him. These envoys are cardinals without exception. It is appropriate that they be called a latere in another sense since cardinals in Curia 216 PAPAL LEGATES 217 arc always at the side of the Pontiff, as it were. Legates a latere are sent upon missions of a very delicate and serious nature. In the early Church they represented the Pope at ecumenical councils. Leo X sent such a legate to receive the abjuration of Luther. Pius VII sent Cardinal Caprara to France to arrange a concordat with Napoleon. But legates a latere may have an honorary mission, namely, to represent the Pope at solemn celebrations, e. g., at the coronation of a king, a Eucharistic Congress, etc. 'I'he mission of a legate a latere, unlike that of other legates is always transient in nature, and when the affair is transacted, his legateship ceases. Nuncios and internuncios are sent to countries which have diplo­ matic relations with the Holy See. 'I'he ordinary jurisdiction of both is the same: 1) to foster friendly relations between the civil government and the Holy Sec, in which capacity they may be called ambassadors in the same sense as the envoys of civil sovereigns; 2) to watch over the condition of the Church in their territory and to inform the Pope (the Secretariate of State) concerning the same. In addition they have delegated faculties, a list of which is found at the end of this manual. Of the 35 nunciatures of the present day 4 arc major nunciatures, or, nunciatures of the first class, namely, those of Paris, Vienna, Madrid and Lisbon. After a nuncio com­ pletes his term at these courts, he invariably becomes a cardinal. All others arc nunciatures of the second class. Apostolic delegates in the broad sense are all ecclesiastics entrusted with jurisdiction by the Holy See, e.g., local Ordinaries with respect to their quinquennial faculties, a delegated judge, a confessor with faculties from the S. Penitentiary, etc. But in the strict and technical sense, as here understood, Apostolic delegates are prelates sent by the Roman Pontiff to countries which do not maintain diplomatic rela­ tions with the Holy See and whose one ordinary function is to watch over the condition of the Church in their territory and to inform the Roman Pontiff thereof. In addition they have delegated faculties more extensive than the quinquennial faculties of the local Ordi­ naries (cfr. p. 736). Relation of legates to local Ordinaries—Papal legates must leave the local Ordinaries free in the exercise of their jurisdiction. Their functions are purely those of inspection and surveillance. Should abuses arise, they may call the Ordinary’s attention to the same, but they cannot directly remedy such abuses by issuing com­ mands and threatening penalties. At the most, if their warning goes unheeded, they must report the matter to the Holy See. Precedence—Legates are usually titular archbishops, except 218 PAPAL LEGATES legates a latere, who are cardinals. Though a legate may lack the episcopal character, he nevertheless precedes all other prelates and dignitaries of his territory, saving cardinals. A cardinal legate a latere precedes all other cardinals. Legati nati—There exists a fifth class of legates called legati nati, although this is now merely a title of honor. From the earliest times the Popes were represented in .all parts of the Church by their Vicars Apostolic (not to be confused with the Vicar Apostolic of the present day of which more in Art. III). Thus, at the Court of Constantinople the papal vicars were called responsales, whose duty it was to exchange answers between the Pontiff and the Eastern Roman Emperor. More often these Apostolic vicars were residential bishops. Gradually the functions and prerogatives of Apostolic vicars became attached permanently to certain sees, and the incumbents came to be called legati nati. Out of this institution arose the primates of the 11th century (cfr. infra). These so often abused their authority, that the Popes found it necessary to suppress this office. From the 16th century they are definitely replaced by the legati must of the present day. ART. II. Patriarchs, Primates and Archbishops While all bishops arc equal in rank so far as concerns the power of orders, not all are equal as concerns jurisdiction. By divine law only the Pope is superior to other bishops in ruling authority. How­ ever, he may share his authority with certain other bishops, and to that extent these bishops acquire supra-episcopal jurisdiction in virtue of ecclesiastical law. This happens in the case of patriarchs, primates and archbishops. We have seen that papal legates assist the Pope, for the most part, in a supervisory capacity. The authority of patriarchs, primates and archbishops, on the other hand, is more direct. Insofar as these govern their own sees as residential bishops they exercise an ordinary jurisdiction which is original; insofar as they act in the capacity of patriarch, primate or archbishop, their jurisdiction extends beyond their own residential see, becoming in this case vicarious, although still ordinary. The reason is that such authority being supra-episcopal can be conferred only by the Pope in whose name it is exercised. PATRIARCHS, PRIMATES, ARCHBISHOPS 219 §1. Patriarchs . (c.271) Next in rank to papal legates come patriarchs. Greek in origin, the word signifies the head of a family, tribe or race. By the fifth century we find the word indicative also of a sacred rank in the Church. The title was reserved to the occupants of five sees: Rome, Alexandria, Antioch, Jerusalem, and Constantinople. The patriarchs exercised jurisdiction over the archbishops in their territory, or patriarchate, much as the archbishops in turn ruled over their suffragan bishops. They could confirm the election of arch­ bishops. consecrate them, depose them, receive appeals from their tribunals, and convene councils of all the archbishops under them. They arc known as the five major patriarchs to distinguish them from minor patriarchs who later cainç into existence. Minor patriarchs are of two classes: Oriental and Latin patriarchs. The former are six in number: 1) the Melchite patri­ arch: 2) the Syrian patriarch; 3) the Maronite patriarch; 4) the Coptic patriarch; 5) the Armenian patriarch; 6) the Chaldean patri­ arch. Ail are subject to the Congregation for the Oriental Church, being clerics of the Oriental Rite. They date their existence in the Roman Catholic Church from the 16th century when, with the return of many schismatics to the fold, the Roman Pontiff gave each of I he above rites their own patriarch together with real patriarchal jurisdiction described above as characteristic of the primitive five patriarchs. The minor Latin patriarchs, who have enjoyed this title for centuries by papal induit are: I) the archbishop (patriarch) of Venice; 2) the archbishop of Toledo in Spain (patriarch of the West Indies); 3) the archbishop of Lisbon; 4) the archbishop of Goa in India (patriarch of the East Indies). And lest their memory perish, the Holy See has been wont to bestow the title of patriarch on four other prelates of the Latin rite, although they represent the four major Eastern patriarchates of old which became extinct in virtue of the disorganization resulting from the Moslem conquest, or through the lapse of the Catholics of those countries into schism. Hence, in addition to the four Latin patriarchs just described, we have Latin patriarchs of Alexandria, Antioch, Jerusalem and Con­ stantinople. We say, Latin patriarchs, because they are ecclesiastics of the Latin rite (titular archbishops) with residence at Rome, excepting the patriarch of Jerusalem. Of Latin patriarchs only three exercise real patriarchal author­ ity: 1) the Roman Pontiff whose patriarchal prerogatives, however, 220 PATRIARCHS, PRIMATES, ARCHBISHOPS arc absorbed and overshadowed by the more exalted jurisdiction of the primacy; 2) the Archbishop of Goa; 3) the patriarch of Jeru­ salem, who lives at Jerusalem and exercises authority over Catholics of the Latin rite resident in Palestine and Cyprus, The other Latin patriarchs have only the honorary title of patriarch, and the right of precedence, but no patriarchal jurisdiction. §2. Primates (c. 271) Next in rank to patriarchs come primates. This dignity, once an office, arose out of the institution of the legati nati, as we said. As the East had its patriarchs, the West had its primates. These generally had authority over an entire nation, but what precise rights were contained in that authority was not always clearly determined ; hence arose abuses. Of the sees which boast, or have boasted, of the primatial honor we may mention Carthage in Africa, .Arles and Rhcitns in Erance, Dublin and Armagh in Ireland, Canterbury and York in England, Toledo in Spain, and Salisbury in Germany. Where two or more primates were found in the same country, the jurisdiction of each extended only over certain provinces of that country. .After the institution of legati missi, particularly since the 16th century, primates gradually lost their jurisdiction. Today the title remains, but it is an honorary one, implying at the most a right of precedence, if we except perhaps the primate of Gran in Hungary, who still seems to enjoy a few primatial prerogatives of a jurisdic­ tional character. §3. Archbishops or Metropolitans (c. 272-280) Definition—Next in rank to primates come archbishops or metropolitans. The two terms arc synonymous. Metropolitan originally meant the ruler of the Metropolis or chief city of the province, archbishop signifying the head of bishops. Since the third century the archbishop has generally been the bishop of the metropo­ lis ; hence, from that time the terms have been used interchangeably. An archbishop, then is a bishop who presides over an ecclesiasti­ cal province, i. e., over a well defined territory embracing a number of dioceses. The bishops of these dioceses are called suffragan bishops in respect to the archbishop, for they have the right to a vote {suffra­ gium) in the provincial council. The archdiocese and the province PATRIARCHS, PRIMATES, ARCHBISHOPS 221 must not be confused: the former is the proper diocese of the arch­ bishop over which he rules in his own right by original authority. It constitutes one of the dioceses of the province. It is the right of the Pone alone to establish new provinces, determine and change their limits, and to appoint archbishops. Powers of archbishops—Between the sixth and the eighth centu­ ries the authority of archbishops had attained enormous proportions, due to the then accepted principle that the power of the archbishop in the province was unlimited, save where expressly curtailed by the common law. Hence, they received appeals and recourses against the sentences and decrees of their suffragans ; they confirmed the election of the latter; consecrated, judged and deposed them. Due to abuses in the exercise of the metropolitan jurisdiction on the one hand, and the gradual centralization of authority at Rome on the other, the authority of archbishops slowly waned in direct proportion as the Roman Pontiffs began to reserve to themselves so-called major cases. The principle was finally established that an archbishop possesses only those rights which the law expressly grants him. Those rights are listed in c. 274 and 284, a summary of the more important ones following: 1) In his own diocese (archdiocese) an archbishop has the same rights and duties as any other residential bishop. 2) In the dioceses of his suffragans it is his right and duty: 1 ) To watch over ecclesiastical discipline, and to report excesses, abuses, and negligences to the Holy See. But he cannot issue commands to his suffragans, nor to their subjects, neither can he threaten penalties. Such authority he can claim only during a canonical visitation, which visitation he can make only when the suffragan bishop neglects the periodical visitation of his diocese, and then only after having obtained permission of the Holy See. 2) To receive appeals from the sentences of his suffragans. Hence, the archbishop's court is the court of second instance with respect to the suffragan courts, e. g., in marriage trials. But recourse from extrajudicial decrees, i. e., administrative acts, of the suffragan must be taken to the competent Congregation of the Holy See. 3) To judge in the first instance controversies concerning the temporal rights of the bishop, of the episcopal mensa (revenues), and of the diocesan Curia, unless the bishop chooses to appoint a collegiate tribunal for this purpose. 4) To exercise the pontificals in any church of his prov­ ince, but not in the cathedral churches of his suffragans, without previous knowledge of the latter. 222 PATRIARCHS, PRIMATES, ARCHBISHOPS 5) To convoke provincial councils, and to preside at them (c. 284). Titles, precedence, insignia—Hitherto in English-speaking countries an archbishop was addressed as Your Grace, His Grace, and bishops as Your Lordship, His Lordship. By decree of the Cere­ monial Congregation (Dec. 31, 1930; Acta, XXIII, 22) arch­ bishops as well as bishops now have the common title of Your (His) Most Reverend Excellency (Excellentia Reverendissima). In his own province an archbishop takes precedence over all suffragans. Outside of his province, he likewise precedes all bishops, saving the bishop in whose diocese the sacred function is held. In that case the local bishop precedes all archbishops, saving his own metropolitan. The distinctive dress of an archbishop is the pallium. This is a circular band of white wool about two inches wide, which, when placed over the shoulders forms a circle about the neck, and has two pendants each about two inches wide and a foot long one drop­ ping down in front, the other down over the back. The pallium is ornamented by six black crosses interwoven into the texture. The pallium is worn over the chasuble. The various historical forms, as also the present form of the pallium are graphically illustrated in the Catholic Encyclopedia under the caption Pallium. Since the pallium symbolizes the participation of the papal authority, every archbishop must, within three months of his eleva­ tion to the archbishopric, petition the Holy Father for the pallium, either in person or through a proxy. For, until he is invested with the pallium, no archbishop-elect can validly exercise the jurisdic­ tional acts of a metropolitan, such as receiving appeals, convening a provincial council, etc. In fact, he cannot, before that time, licitly perform liturgical acts which require the use of the pallium, and this is true even though he be a consecrated bishop. The pallium may be worn in any church of the province, but neither outside the church nor outside the province. It can be worn only at High Mass, and on certain major feast days, designated in the Roman Pontifical. Titular archbishops do not wear the pallium save by special privilege. They have only the title, not the jurisdiction of arch­ bishops. Sometimes this honor of the pallium is granted to mere bishops. VICARS AND PREFECTS APOSTOLIC 223 ART. ΠΙ. Vicars and Prefects Apostolic (c. 293-311) Definition—Vicars and prefects Apostolic are those ecclesiastics who rule over missionary territories, i. e., territories which have not been erected into dioceses, or restored to the status of a diocese. Since these territories do not form an integral part of any diocese, it follows that they are directly subject to the jurisdiction of the Roman Pontiff, who governs them through his representatives. In this sense vicars and prefects Apostolic are the Pope’s assistants in missionary countries. A vicar Apostolic is usually a titular bishop, a prefect Apostolic, a priest. First a mission is erected into a prefecture, and when it has attained a certain degree of internal organization and perfection it is elevated to the rank of a vicariate. Both the vicar and the prefect Apostolic have ordinary jurisdic­ tion, which however is vicarious, since it is exercised in the name of the Pope and by his authority. Hence, they do not govern their territories in their own name and by original right, as do residential bishops. For, although at one time missionary countries were evangelized by bishops, who thereafter governed such districts in their own name, it was found more convenient, and more in harmony with the nature of things, to entrust the charge of missionary districts to papal vicars. The reason is that it is the peculiar function of the episcopal office to govern the flock {regere fideles). But in the missions where the faithful are so few in number, more attention must be given to converting infidels than to ruling the faithful. Rights and duties—Vicars and prefects Apostolic have the same powers and rights as have residential bishops so far as jurisdic­ tion is concerned. But they cannot be named in the Mass (S. C. Rites, Mar. 8, 1919; Acta Xl, 145). As to the power of orders, even though they lack the episcopal character, they can impart blessings reserved to bishops, consecrate patens, chalices and portable altars, confirm, and give first tonsure and minor orders. They have the general duty of supervising the propagation of the faith in their territories. To this end they can exact obedience of all their missionaries, both secular and religious. They are bound to make a canonical visitation of their territories from time to time, and to inquire concerning faith and morals, the administration of the sacraments, sacred preaching, the observance of holydays, divine 224 VICARS AND PREFECTS APOSTOLIC worship, the education of youth, and matters of ecclesiastical discip­ line in general. They must give a written quinquennial report on the state of their mission to the Pope, i. e., the Congregation of the Propagation of the Faith. Moreover, vicars, but not prefects Apostolic, must make a visitatio ad limina in the same manner as residential bishops. Honorary rights—Vicars and prefects Apostolic, who arc titular bishops, enjoy all the honorary prerogatives accorded to this class of dignitaries. If they are not bishops, they can claim the title and prerogatives of Prothonotaries Apostolic de numero participantium. ART. IV. Apostolic Administrators (c. 312-318) An Apostolic administrator is an ecclesiastic (sometimes a titular bishop, sometimes a neighboring residential bishop), who, under exceptional and grave circumstances, is appointed by the Pope to take charge of a canonically erected diocese. The cleric, so appointed, does not govern the diocese in his own name but in the name of the Pope, and by his authority. His jurisdiction, although ordinary, is vicarious, and to the extent that it is vicarious he may be said to assist the Pope extra Curiam. Administrators Apostolic may be appointed to a diocese sede plena or sede vacante. Sede plena, it may he that the bishop has been exiled, suffers from ill health, has been suspended, has incurred the odium of the people or of the civil authorities, etc. Sede vacante. it may happen that the cathedral chapter, or the diocesan consultors, are impeded from electing a vicar capitular or diocesan administrator. Apostolic administrators receive permanent or temporary ap­ pointment. If permanently appointed, they have the same rights and duties as residential bishops; if temporarily appointed, their status is that of the capitular vicar, or diocesan administrator. If the see is not vacant, the jurisdiction of the bishop and vicar­ general is suspended. And while the Apostolic administrator is in no way subject to the bishop, nevertheless he may not interfere in his personal affairs, nor proceed against the vicar-general for acts of past administration. These rules obtain insofar as they are not expressly modified by contrary instructions contained in the letters of appointment. APOSTOLIC ADMINISTRATORS 225 The office of an Apostolic administrator does not cease upon the death of the Pope, or of the bishop whom he replaces. If temporarily appointed during a vacancy, the Apostolic administrator loses his jurisdiction when the new bishop takes possession of the see. If ap­ pointed sede plena, his authority may cease in any one of a number of ways, c. g., if the bishop is reinstated, if the administrator is removed, if his term has expired, etc. ART. V. Inferior Prelates A real prelate is any ecclesiastic with jurisdiction in the external forum: an honorary pfclate is a cleric who enjoys the title of prelate but lacks jurisdiction in the external forum. §1. Real Prelates (c. 319-327) Real prelates are major prelates if they are bishops, otherwise they are termed inferior, or minor, prelates. Having spoken of the major prelates who assist the Pontiff extra Curiam, we shall now say a few words about inferior prelates who arc the Pope’s ministers outside of Rome. It is true that we have not discoursed on residen­ tial bishops who are major prelates because these arc not the Pope’s assistants, but govern their dioceses in their own name (cfr. chapter IV). Neither are we concerned with those clerics who arc real prelates but assist the bishop, e. g., the vicar-general, the diocesan official, etc. By divine law the faithful should ordinarily be governed by bishops who exercise jurisdiction in their own name, yet nothing prevents the Pope from entrusting a portion of his authority to clerics who are not bishops, so that these too may govern the faithful in his name in virtue of jurisdiction granted them both for the external and internal forum. Insofar as these clerics enjoy a derived papal jurisdiction for the external forum, they must be considered real prelates in the canonical sense of the word. There arc three grades of inferior prelates who act by authority of the Pope, depending upon their degree of exemption from the jurisdiction of a bishop: 1 ) The lowest grade of minor prelates arc those who enjoy 226 INFERIOR PRELATES a passive exemption only, for they have jurisdiction only over their religious subjects within the confines of a monastery or convent. These arc abbots of independent monasteries, {abbates regulares de regimine), and major superiors in clerical exempt religions. More will be said concerning these prelates on pp. 308 if., 373. 2) A higher grade of minor prelates comprises those who rule over secular laymen but within the territories of local bishops, e. g., military chaplains, clerics appointed by the Holy See for the govern­ ment of the faithful of a certain rite, nationality, etc. 3) The highest grade of minor prelates are those who rule both clergy and laity within a territory belonging to no bishop in countries where the hierarchy is fully established. These arc called abbots and prelates nullius, i. e. nullius dioecesis. Abbots and prelates nullius—These are prelates who rule over a territory separated from every diocese, and have a clergy and laity of their own. They arc abbots nullius if their church is an abbey church, prelates nullius otherwise. Abbots nullius arc invariably members of the Benedictine Order, prelates nullius may be secular clerics, or non-Benedictine religious. Not a few abbacies nullius owe their origin to the gradual formation in the Middle Ages of some town around a monastery situated in a remote place distant from any city. By degrees the jurisdiction of the abbot reached out beyond the monastery walls extending itself to all the inhabitants of the town. This enlargement of power was subsequently ratified by the Popes. Prelacies are explained by the fact that some part of a diocese governed by an archpriest or archdeacon in the bishop's name, came in course of time to be governed by the cleric in his own name, and this order of things was sanctioned by custom, prescription, or papal induit. Today abbacies nullius and prelacies nullius together number about 70 (cfr. Annuario Pontificio). In the United States we have one abbacy nullius, that of St. Mary’s at Belmont, N. C. Famous abbacies nullius are those of Monte Cassino, and of St. Paul’s outside the Roman Walls. Of the prelacies nullius several are in South America. An abbot nullius is elected by his abbey chapter of religious; a prelate nullius by his chapter of religious if he is a religious, other­ wise by his secular chapter. In every case the election requires the confirmation of the Pontiff. Abbots and prelates nullius enjoy the same jurisdictional rights as residential bishops. As to the power of orders, even though they lack the episcopal character, they may impart all episcopal blessings. INFERIOR PRELATES 227 consecrate patens, chalices, movable and immovable altars, confirm, give first tonsure and minor orders, and exercise the pontificals with throne and canopy. These privileges are accorded them only within their own territories. But outside of their territories they may wear the pectoral cross, the studded ring and the violet skull-cap. Abbots nullius cannot validly consecrate churches outside their territory even with permission of the local Ordinary (Code Comm. Jan. 29, 1931; Acta XXIII, 110). §2. Honorary Prelates (c. 328) Honorary prelates—These simply have the title of prelate but no prelatial jurisdiction (monsignors). They belong to the Pontifical Family (the Papal Household), not to be confused with the Roman Curia. Honorary prelates are of three classes: 1) prothonotaries Apos­ tolic, and these again arc either de numero participantium, or super­ numerarii, or ad instar participantium ; 2) domestic prelates, although these often are prelates living outside of Rome; 3) papal chamber­ lains and chaplains. The rights and privileges of each class have been described anew in the Constitution Ad incrementum of Aug. 15, 1934 (Acta XXVI, 497). Honorary prelates as such, i. e., by reason of their monsignor rank alone, enjoy no jurisdiction. If they have jurisdiction, it will be from some other source, e. g., a monsignor who at the same time is vicar-general. ART. VI Ecumenical, Plenary, Provincial Councils In these gatherings clerics exercise jurisdiction as a group which they would not possess as individuals. An ecumenical council is a general church council to which all bishops of the Church are invited. They can be convoked by the Pope alone, who also presides in person or through his del­ egate. e. g., a cardinal legate. Besides all residential bishops, the following are invited with the right of deliberative vote: cardinals, patriarchs, (even though they happen not to he bishops), abbots and prelates nullius, abbots de regimine, and supreme heads of clerical exempt religions. Titular bishops and archbishops may come if 228 COUNCILS invited. Theologians and canonists if invited have only a consultive vote. An ecumenical council under the headship of the Roman Pontiff has supreme jurisdiction in the universal Church. Its decrees, therefore, bind throughout the entire Catholic world, but only after they have been confirmed and promulgated by the Pope (c. 222-229). A plenary council is an assembly of all the bishops of a kingdom or nation. It cannot be convoked without papal permission. The Pope will then send his legate to convoke and preside at the council. The reason for this is that the laws of a plenary council bind in even’ diocese of the nation. It is only the Roman Pontiff who can endow laws with this general force, for bishops even by majority vote cannot make laws for a diocese whose bishop does not consent. Hence, the council is really exercising vicarious papal authority as a council. Those to be invited with deliberative vote are: residential archbishops and bishops, administrators Apostolic, abbots and prelates, nullius, vicars and prefects Apostolic, and vicarscapitular. Titular bishops may be invited. Others invited have only a consultive vote (c. 281-292). A provincial council is an assembly of all the residential bishops of an ecclesiastical province, who also cast deliberative votes. Titular bishops may be invited. But two consultors from each diocese, all regular abbots, and major superiors of clerical exempt religions with residence in the province must be invited, and have a consultive vote. The council’s laws bind throughout the province if confirmed by the Holy See. A provincial council ought to be convoked once every 20 years (c.281-292). N. B. A synod, as we shall see, is a gathering of the priests of the diocese under the presidency of the bishop to enact regulations for the diocese. A full gathering of the authorities in a religious Order or Congregation is usually called a chapter. Chapter IV BISHOPS By divine ordinance the Church must be ruled not only by the Pope but also by bishops. Having thus far described the papal government in the Church, we shall now consider its episcopal government. As the Sovereign Pontiff has his assistants who aid and counsel him in the government of the universal Church, so too have the bishops their assistants who help them in the government of the diocese. In the present chapter we shall speak of bishops considered in themselves before passing on to consider in the next two chapters those who assist the bishop in the government of the diocese, and in the sacred ministry. We shall consider: 1) the nature of the episcopal office; 2) the appointment of bishops; 3) their qualifications; 4) their rights and powers; 5) their obligations; 6) their privileges; 7) loss of the episcopal office; 8) titular bishops. ART. I. Nature of the Episcopal Office (c. 329, §1) Bishops are the successors of the Apostles by divine institution who preside over individual churches, which they govern in their own name, though under authority of the Roman Pontiff. 1) Bishops are the successors of the Apostles, but within limits. For in the Apostles we can distinguish three powers: the apostolic, the priestly and the episcopal power. In virtue of their apostolic power each Apostle possessed the gift of infallibility, and with due submission to St. Peter as the Head of the Apostolic College, each Apostle, without restriction as to territory, forgave sins, preached the gospel, established churches (dioceses), appointed and consecrated bishops, and laid down laws for their bishops and their flocks. Such 229 230 BISHOPS apostolic power, because extraordinary, has not passed to their succes­ sors. In virtue of their priestly power each Apostle had the fullness of the priesthood, i. c., of the power of orders. Not only could they offer Holy Mass and administer sacraments in common with the presbyters, but unlike the latter they could administer the sacrament of confirmation and confer holy orders. This fullness of the priest­ hood has been transmitted to their successors, the bishops. In virtue of their episcopal power the Apostles governed and ruled the faithful, and this power, too, is possessed by the bishops, each with respect to the particular church which has been assigned to his jurisdiction. Bishops are the successors of the Apostles not individually but only collectively. In other words the college of bishops has succeeded the college of the Apostles in office. For excepting the bishop of Rome, perhaps it is true to say that no bishop now living can claim direct jurisdictional descent from any Apostle. 2) Bishops arc the successors of the Apostles by divine institu­ tion. Christ, our Lord, willed that His Church should be governed not only by St. Peter and his successors the Roman Pontiffs, but also by the Apostles and their successors. For, to the eleven as well as to St. Peter was directed the divine command: Going, therefore, teach ye all nations, baptizing them (Mt. XXVIII, 19). Moreover, to the eleven as well as to St. Peter did Our Saviour promise perpetuity of office: Behold, I am with you (vobisetim) all days even to the consummation of the world (Mt. XVIII, 20). As a matter of fact the Apostles took care to appoint holy men to supervise the Christian communities (ecclesiae) which they founded. The indi­ vidual who thus succeeded an Apostle was already from the begin­ ning of the second century universally called episcopus, which means a superintendent, inspector. Hence, it was not the body of presbyters, but individuals with monarchical authority, who by divine law were to succeed the Apostles. That the presbyterial system, though existing in a few churches in the first century, was not intended as a permanent institution by the Apostles, is fully proven in standard works of dogmatic theology (Tanquery, Synopsis Theologiae Dog. I, n. 633-657). 3) Bishops preside over individual churches. From the earliest times the territory over which a bishop ruled was called a diocese, originally a territorial division in Roman civil law comprising a number of prefectures. This system of episcopal government by territory, although originating with the Apostles, dors not seem to be of divine law; otherwise it is difficult to explain how certain bishops can exercise only personal jurisdiction, as in the case of the episcopal head of military chaplains, the Greek-Ruthenian bishops BISHOPS 231 of the United States, and in general all the bishops of the Oriental Uniate rites. It is certain, however, that the diocesan system is of human law in the sense that the various dioceses now existing, or which have existed, are the work of man. At first the dioceses were established by the Apostles; after their time by the provincial councils in the East; later, in the West by the Roman Pontiff alone, though participation in this matter by the civil ruler was permitted. Today in the Western Church it is the Roman Pontiff alone who erects, circumscribes, unites, and suppresses ecclesiastical dioceses and provinces ( c. 215, § 1 ). 4) Bishops govern their dioceses in their own mime, just as the Apostles ruled .their churches in their own name. Bishops are not the vicars of the Pope, no more than were the eleven Apostles vicars of St. Peter. Hence, their jurisdiction is original, not derived; ordinary, not delegated. The question is agitated whether bishops receive their authority from God immediately, or onh mediately through the Pope. The controversy has no practical consequences, for no matter which opinion is followed, it is the Pope who must intervene before any bishop can in fact exercise episcopal jurisdic­ tion validly. It is he who by explicit consent (or tacit consent as in the primitive Oriental Church) assigns a bishop his diocese and people, who transfers, suspends and deposes bishops. /Ml are agreed, on the other hand, that the episcopal power of orders comes immediately from God through consecration. 5) Bishops govern their dioceses tinder authority of the Roman Pontiff. The reason is that the Pope by divine law holds the primacy of jurisdiction in the Church, that authority being ordinary and im­ mediate in the universal Church, as we have said elsewhere. There is no contradiction or conflict involved in this two-fold authority over the same subjects, provided the proper subordination of the lower to the higher authority be observed. Thus, c. g., no bishop can legis­ late contrary to the common law, nor may he in his diocese obstruct the enforcement of that law in any manner whatsoever. What has been said concerning the nature of the episcopal office, applies only to the office of a residential bishop. A residential bishop, as the name implies, is one who resides in his jurisdiction, or diocese, and exercises authority therein. A titular bishop, on the other hand, is a consecrated bishop without episcopal jurisdiction. We say, with­ out episcopal jurisdiction, for inasmuch as these titular bishops are sometimes appointed Apostolic vicars, administrators, legates, etc., they indeed share in the papal jurisdiction, but as vicars of the Pope; they do not exercise episcopal jurisdiction in their own name and by original right as do the residential bishops, and as behooves a true 232 BISHOPS successor of the Apostles. Titular bishops will be discussed more fully in Art VIII of this chapter. Residential bishops may be divided into: 1) suffragan bishops and exempt bishops, depending upon whether they are subject immediately to an archbishop and have a vote (suffragium) in the provincial council, or rather whether they arc subject immediately to the Pope; 2) residential bishops simply, archbishops, primates and patriarchs, the latter three sharing papal jurisdiction to some extent over other bishops, as already explained; 3) secular bishops and religious bishops, according to whether before their consecration they were secular or religious priests. From what has been said concerning the divine institution of the episcopate it follows that the Church must ordinarily be gov­ erned by bishops ruling in their own name. It is beyond the power of the Pope, therefore, to abolish the episcopate, and rule all parts of the Church through his vicars. But the Pontiff may in exceptional cases appoint his vicars to govern certain parts of the Church, and this in fact he docs in the case of vicars and prefects Apostolic, administrators Apostolic, abbots and prelates nullius, and major superiors in clerical exempt religions with respect to their own religious subjects. ART. II. Appointment of Bishops (c. 329, §2; 332; 333) The first bishops were appointed by the Apostles. After their time, bishops were in the primitive ages chosen by the clergy, with the approval of the laity, the choice being sanctioned by the neighbor­ ing bishops, or by the metropolitan after consulting with his suffra­ gans. But the secular authorities, too, from the earliest times inter­ vened in episcopaj appointments, both in the East and the West. To some extent this was tolerated, and even approved of by the Church. But intervention gradually became intrusion, the climax of which was reached in the ninth and tenth centuries in the form of civil investiture with staff and ring. This abuse having ended in 1122 through the Concordat of Worms, episcopal elections passed ex­ clusively to the cathedral chapters. But here, too, abuses gradually crept in, and developed to such proportions that by the 14th century the Roman Pontiffs began to reserve episcopal appointments to themselves. Today the rule is that bishops are freely appointed by the Pope. BISHOPS 233 However, the designation of the candidate to be appointed can, and does, take place in four ways : 1 ) a bishop may be both freely desig­ nated and appointed by the Pope; 2) he may be elected by the cathedral chapter, as in the dioceses of Prussia, the Upper Rhine Province, and a few dioceses of Austria and Switzerland: 3) he may­ be presented by the civil government in virtue of a privilege accorded through concordats, as happens today in many Catholic countries; 4) he may be recommended by the bishops of a province, and this mode of designating candidates for the bishopric applies to the United States, Canada, Mexico, England, Ireland, Scotland, and to some extent to Poland, France, Holland and Belgium. The rules govern­ ing recommendation of candidates in the United States are found in the decree of the Consistorial Congregation under date of July 25, 1916 {Acta VIII, 400), a translation of which document is given by Bouscaren in his Canon Law Digest, vol. 1, p. 194, sq. Briefly the decree states that every bishop should inquire of pious and prudent priests in his diocese their views as to the priest best qualified for the episcopate, and this under the greatest obligation of secrecy. Once every two years the bishops of the province must meet under the presidency of the archbishop in an informal and quiet manner to discuss the candidates suggested. Those who obtain the majority of votes have their names sent to the Apostolic Delegate, and through him to the Holy Sec. It is understood that the Pope is free to appoint to a vacant see a cleric who has not been thus recommended by the bishops. Whether a candidate is designated through election, presenta­ tion or recommendation, it is necessary that he be appointed, i. e., re­ ceive canonical institution from the Pope. Before this time he cannot be said to enjoy any of the jurisdiction of bishops. Nor has he episcopal jurisdiction before he takes canonical possession of his diocese, even though he has received the papal letters of appoint­ ment. This canonical possession of his sec every' bishop must take, at least within 4 months of the reception of the letters of appoint­ ment, unless a legitimate cause excuses. The canonical possession is effected when the bishop, either in person or through a proxy, exhibits to the cathedral chapter, or the body of diocesan consul tors, the papal letters of appointment. A mere priest must receive con­ secration within three months of notice of his appointment to a see (c. 333-334, §2,3). 234 BISHOPS ART. III. Qualifications Required in Bishops (c. 331) Those who have the privilege of electing, presenting or recom­ mending candidates for the episcopate should bear in mind the qualifications required in such candidates by common law. These are: 1 ) The candidate must have been born of legitimate wedlock, and legitimation by subsequent marriage of the parents does not suffice ; 2) He must be at least 30 years of age; 3) He must have been ordained at least five years; 4) He must be endowed with good character and morals, piety, zeal for souls, prudence, and possess such other gifts as will render him fit to govern the particular diocese in question (e. g., executive and administrative ability in a diocese to be newly organized); 5) He should have a doctorate, or at least a licentiate, in sacred theology or canon law, or at any rate he should be truly versed in these sacred branches; in the case of a religious, the candidate must have received such degrees or testimonials of learning from his major superiors. It belongs to the Holy See to judge in every case whether a given candidate does, or does not, possess the qualifications in ques­ tion. This will be the Secretariate of State, the Consistorial Congre­ gation, or the Propaganda, according to the nature of the case. ART. IV. Powers of Bishops Bishops are the successors of the Apostles in the three-fold office of sanctifying, teaching, and ruling the faithful. §1. Power of Orders Bishops possess the fullness of the power of orders to enable them to sanctify souls. By divine law it is proper to them alone to confer the sacrament of confirmation and holy orders. By ecclesiastical law bishops arc the ordinary ministers of certain sacramentals, namely, they consecrate churches and altars, and the BISHOPS 235 holy oils used in the administration of certain sacraments, and they impart those blessings which must be accompanied by unctions. When a bishop performs functions proper to the episcopal order for which the use of the staff and mitre is required by sacred liturgy, he is said to exercise the pontificals. This right to exercise the pontificals in any church of his diocese, including exempt churches, is recognized in every residential bishop by the common law. He may allow another bishop to exercise the pontificals in his own diocese, and even permit him the use of throne and canopy. To exercise the pontificals outside of his diocese a bishop needs at least the presumed consent of the local Ordinary of that place, and the consent of the religious superior if there is question of an exempt religious church, (c. 337). §2. Teaching Power We have said that the gift of infallibility enjoyed by each Apostle has not passed down to his successors. Infallibility is now vested only in the college of bishops, whether gathered in ecumenical council under the presidency of the Sovereign Pontiff, or scattered throughout the world. Nevertheless, by divine law the individual bishops, considered singly, are still the real doctors and teachers of their people, under the authority of the Roman Pontiff (c. 1326). Included in that teaching office arc the following rights and duties: 1) To preach the gospel in person unless a lawful cause ex­ cuses; to see that pastors comply with the same obligation, and to grant preaching faculties to all priests in the diocese (c. 1327 ; 1337) ; 2) To watch over schools, colleges and seminaries in the diocese so that nothing is taught contrary to faith and morals (c. 1336, 1357, 1381, 1382); 3) To censure books before publication, and to forbid the reading *of hooks and pamphlets dangerous to faith or morals (c. 1385, §2; 1395, §1); 4) To forestall, correct and suppress any abuses, superstitions, or scandals which may arise in connection with the administration of the sacraments and sacramentals, public worship, sacred preaching, indulgences and relics (c. 336, §2, and the various titles of Bk. 111 of the Code which contain the legislation on the above subjects). §3. Power of Jurisdiction Residential bishops are the ordinary and immediate pastors of their flock (c. 334, §1). They possess the fullness of legislative, 236 BISHOPS administrative and judicial power throughout the diocese, though always in subordination to the Roman Pontiff (c. 335, §1). However, it may be noted, residential bishops arc not forbidden to share their jurisdiction with certain clerics of the diocese. In fact, the law makes this obligatory in some cases, as we shall see. A. Legislative Jurisdiction 'I'he bishop is the sole lawgiver in the diocese with respect to all other clerics and prelates in the diocese, but within due restric­ tions. Thus, he cannot legislate contrary to the prescriptions of common law, the decrees of the Holy Sec, or the decrees of plenary and provincial councils. But he can. in respect to all such legislation, issue interpretations of the law where the law is not clear, and can enact regulations enforcing the higher law with more detailed rulings if that law is too general or vague. In these matters the bishop is not wont to commit to other clerics of his diocese such authority. The bishop can legislate both in and out of synod. A diocesan synod is a gathering of the clergy of the diocese convoked by the bishop for the discussion of matters necessary or useful to the administration of the diocese. By common law the synod must be held at least once every ten years. Preferably it should be held in the cathedral. Those who arc called to the synod, however, have, only a consultive vote, the bishop being the sole legislator (c. 356362). 'I'lic bishop may dispense from his own laws and those of his predecessors, by original right (c. 80). He may dispense from the laws of the provincial and plenary council for a just cause and in individual cases (c. 291, §2). From the common law he may not dispense save in three cases: I) if he have delegated, e.g., quin­ quennial faculties, and to the extent that such faculties authorize him to dispense; 2) where the common law expressly or impliedly grants him dispensing powers, e. g., concerning marriage impediments in danger of death, concerning the publication of the banns, the laws of fast and abstinence, etc.; 3) in virtue of c. 81 the bishop can dispense from any and every general ecclesiastical law when the case is urgent and time does not permit recourse to the Holy See, and there is question of some matter in which the Holy See is accustomed to dispense (c. 81 ). B. Executive Jurisdiction Xot only arc bishops executors of their own laws, but they are the ordinary administrators and enforcers of the common law in their dioceses. To this end, as we shall see, they arc bound by BISHOPS 237 common law to visit their dioceses at fixed intervals, and must make a quinquennial report to Rome on the state of their dioceses. As administrators of the common law, bishops: 1) admit candi­ dates to sacred orders, incardinate and excard inate clerics, and grant diocesan faculties to perform the sacred ministry; 2) they appoint clerics to vacant offices and benefices, transfer, suspend and remove them; 3) they erect, unite, dismember and suppress ecclesiastical offices and benefices; 4) they see to the erection, maintenance and discipline of the diocesan seminary; 5) they grant letters of incor­ poration to collegiate and non-collegiate persons and institutions, e.g., confraternities, hospitals, orphanages, etc.; 6) they supervise the administration of all diocesan temporalities, demand reports of pastors, impose taxes and assessments; 7) they inflict censures and other penalties when necessary to procure the observance of the law; 8) in virtue of their teaching office they perform those administrative acts which were described on p. 235; 9) they issue permissions pre­ scribed by law for the licitness of certain acts, e.g., permission to read prohibited books, to celebrate Mass in private homes, to say Mass outside of a church and oratory, etc. In the performance of these administrative acts, the bishop either enacts administrative legislation, especially in synod, or issues rules, precepts, instructions, or grants rescripts. C. Judicial Jurisdiction The bishop is the ordinary judge of first instance in all trials which belong to the ecclesiastical forum, although some few cases arc reserved to the Holy Sec in the first instance (cfr. p. 582). But the Code does not want the bishop to exercise his judicial power personally save in rare cases. He should appoint a priest to the office of diocesan Official with vicarious ordinary jurisdiction to preside at all trials in the diocese (p. 583). ART. V. Duties of Bishops The rights with which bishops are vested, and which we have just discussed, may impliedly be viewed as so many duties also, at least in most instances. Here we shall consider other more direct duties. Residence—Even though they should happen to have a co­ adjutor, residential bishops are bound to reside in their dioceses. 238 BISHOPS But a bishop is allowed a three months’ vacation each year. The visitatio ad limina, and his absence from the diocese while attending an ecclesiastical council, or for any other grave reasons, is not com­ puted in the bishop’s vacation. But he should not be absent from his cathedral during Advent and Lent, and on Christmas, Pentecost or Corpus Christi, save for grave reasons (c. 338). Missa pro populo—Residential bishops are obliged to apply Mass for the faithful of their dioceses on the days determined by law, namely as in c. 339. This obligation being incumbent on all pastors as concerns their parishioners, we shall list the days referred to below on p. 275. Fisitatio ad Limina—This implies a three-fold obligation : 1) to submit a report to Rome on the state of the diocese; 2) to visit the tombs of the Apostles Peter and Paul; 3) to pay a personal visit to the Pope (c. 340-342). Bishops must submit once every five years a written report to the Holy See (to the Consistorial Congregation bv U. S. bishops) on the spiritual and temporal condition of their dioceses. That some system may be observed in this matter lest the Congregations be over­ burdened one year and unoccupied the next, these quinquennial periods are so fixed that they are to be computed reckoning from 1911 as follows: in the first year (1911) the report is submitted by the bishops of Italy and the adjacent Islands; in the second year by the bishops of Spain, Portugal, France, Belgium, Holland, England, Scotland, Ireland and the adjacent Islands; in the third year by all other bishops of Europe and the Adjacent Islands; in the fourth year by the bishops of North, Central and South America and the adjacent Islands; in the fifth year by the bishops of Africa, Asia, Australia and their adjacent Islands. Thereupon, the cycle begins to repeat itself in the above described order. If the year for making the report should happen to fall within the first two years of a bishop’s occu­ pancy of the see, he may for that quinquennial period omit the report. The formula which must be employed when drafting the report is that issued in the form of a questionnaire by the Consistorial Congregation, Nov. 4, 1918 (dicta X, 487). During the year assigned for submitting his quinquennial report the bishop must also visit and pray at the tombs of St. Peter at the Vatican, and St. Paul Outside the Walls. Likewise, he must pay a personal visit to the Sovereign Pontiff, give an oral account of the administration of his diocese, and in turn receive from the Holy Father salutary instructions, consolation and encouragement. A bishop may substitute in his place for this two-fold visit his co­ adjutor or auxiliary, if he have one, but not a priest without previous BISHOPS 2Î9 approval from Rome. Bishops who live outside of Europe may defer their visit to Rome, and make it every ten years, but the quinquennial report must be sent in every five years. Visitation of diocese (c. 343-346)—The bishop must visit his entire diocese at least once every five years, but in such wise that annually some part of the diocese be visited. With us this is usually on the occasion of Confirmation. This visitation should be conducted in person, unless the bishop is lawfully impeded, in which case he can delegate another, e. g., the auxiliary bishop, to fulfill this duty. The scope of the visitation is that sound doctrine be preserved, morality safeguarded, vice suppressed, and innocence of life, piety and discipline among clergy and laity be fostered. The object of the visitation includes things, persons and places: things, i. e., sacred furnishings, sacred vessels, altars, confessionals, and the administration of church property, including all church registers; persons, i. e., the clergy, religious and laity, whether con­ sidered as individuals or corporations, e. g., confraternities; places, i. e., churches, chapels, Catholic schools and institutions, e. g., hospi­ tals and orphanages. With reference to religious, the right of the local Ordinary to visit these will be discussed later on p. 314. The mode of procedure on the occasion of the visitation should be paternal. That is, without resorting to ecclesiastical penalties in the capacity of a judge, the bishop ought to point out in a fatherly way where things might be bettered. He may even administer mild rebukes and admonitions, and impose penances, if the case so war­ rants. From the bishop’s precepts or penances thus given extra judicium there lies recourse only in devolutivo. Should the gravity of some abuse urge the bishop, even there and then on the occasion of the visitation to proceed as judge, and set up court, he may do so, hut from his sentence the condemned has a right to appeal to the archbishop in suspensivo, the sentence in the meantime being held in abeyance. ART. VI. Privileges of Bishops These may be reduced to three: 1) the episcopal insignia; 2) the right of precedence; 3) all other rights and privileges. Episcopal insignia—They are: the violet dress or robe, the violet 240 BISHOPS skull-cap, the violet biretta, the mitre, crosier, pectoral cross, pontifi­ cal ring, dalmatics, tunicella, sandals and gloves (c. 349, §1, n.2). In addition, all bishops, as we said, have the title of Excellency and Most Reverend (p. 222). Precedence—In his own diocese a residential bishop precedes all other bishops and archbishops, excepting cardinals, papal legates and his own metropolitan. Outside of his diocese the general rules as on p. 136 obtain (c. 347). Other rights and privileges—Of the various episcopal privileges found in the Code we confine our attention only to the following: 1 ) to empower any priest to hear their confession, granting him at the same time faculties to absolve from all reserved sins and censures, saving censures reserved specialissimo modo to the Holy See, and those attaching to a violation of the secret of the Holy Office; 2) to bless the faithful after the manner of bishops; i. e., with the triple sign of the cross; 3) to bless rosaries, crosses, medals, scapulars and statues with all the indulgences which the Holy See is wont to grant, and this by the sign of the cross alone, unless liturgical books contain a special formula; but this being a personal privilege, not in the nature of a quinquennial faculty, it cannot be delegated by the bishops to his priests (S. Penit., July 18, 1919; Acta XI, 332; Nov. 10, 1926; Acta XVIII, 500; 4) to celebrate Mass on a portable altar and at sea, and to consider every altar at which they celebrate a privileged altar; 5) to celebrate Mass any­ where according to their own calendar; 6) to gain indulgences at­ tached to the visit of a particular church or chapel by a visit to their own chapel; 7) to grant an indulgence of 50 days in all places of their jurisdiction; 8) to erect throne and canopy in any church of their diocese (c. 349). ART. VII. Loss of Episcopal Office While the episcopal power of orders is never lost so that even a suspended bishop can validly confirm and ordain, yet episcopal jurisdiction can be lost on general principles applicable to the loss of ordinary jurisdiction (c. 208), namely, by transfer, resignation accepted by the Pope, and deposition. BISHOPS 241 ART. VIII. Titular Bishops Titular bishops differ from residential bishops in that being consecrated they have the episcopal power of orders, but they are lacking in the jurisdiction of residential bishops. Still the law accords them all the privileges of bishops just described above, saving the right to grant a 50 days* indulgence, and to set up throne and canopy. Precedence among titular bishops is governed by the general rules on p. 136. The institution of titular bishops may be traced to the expulsion of residential bishops from their sees in countries invaded by infidels beginning with the seventh century, and the desire of the Holy See to preserve the memory of those ancient sees. Fleeing to other coun­ tries they were taken in by the local bishops, whom they assisted especially in pontifical functions. Until recently it was wont to call them episcopi in partibus infidelium, but in virtue of a decree of the S. Prop, issued Feb. 27, 1882 {Collectanea, n. 1565), they arc now called titular bishops. According to whether the sec of which they are titulars was once only a diocese, or an archdiocese, we have titular bishops and titular archbishops. Titular bishops and archbishops are usually the major officials in the Roman Curia, papal legates of all kinds, Apostolic vicars in missionary countries, and Apostolic administrators. Titular bishops are not bound to apply Mass for the faithful of their now extinct sees, but it behooves them to do so occasionally out of charity. Coadjutor and auxiliary bishops arc likewise titular bishops. These are given to the residential bishops, especially of the larger dioceses, to supply for them in pontificalibus. They are at the present day what chorepiscopi were between the third and eighth centuries. A coadjutor differs from an auxiliary bishop in that he is appointed to a see with the right of succession, not so the latter. Hence, upon the vacancy of the see the coadjutor becomes the residential bishop as soon as he presents to the cathedral chapter or to the diocesan consultors his letters of appointment. An auxiliary’s office ceases with the vacancy of the see, unless his letters of appointment read otherwise, e. g., it may be provided that he continue as Apostolic administrator until the vacancy is filled. The authority of coadjutor and auxiliary bishops sede plena depends upon the papal letters of appointment and the commission of the residential bishop. They need not of necessity fill the office of vicar-general. Chapter V THE BISHOP'S ASSISTANTS IN THE GOVERNMENT OF THE DIOCESE As the Roman Pontiff has need of prelates to aid him in the government of the universal Church, so, too, a bishop shares his authority with clerics of the diocese in governing souls under his charge. The officials who help the bishop in governing the diocese form two groups: 1) the episcopal curia; 2) the episcopal senate. We might add the episcopal court, but the Code does not speak of the diocesan court at this place, but rather in Bk. IV. ART. I. The Episcopal Curia To the episcopal or diocesan curia belong: 1) the vicar-general; 2) the chancellor; 3) notaries; 4) synodal examiners; 5) parish priest consultera; 6) vicars-forane. We shall consider the rights, duties and appointments of these officials in turn, but first we premise a few historical notes concern­ ing the epicopal curia in general. Historical notes—In the first three centuries of the Church the words curia and presbytery were synonymous: the presbytery was the bishop’s curia. It included all the clergy of the diocese, not only the presbyters or priests, but also the deacons and, after their institu­ tion in the third century, subdeacons and clerics in minor orders. All lived in the episcopal city near the bishop, assisting him both in the sacred ministry, each according to the grade of orders he possessed, and in the government of the diocese. Administrative, or governmental, functions were entrusted to clerics irrespective of their rank in the hierarchy of orders. Neither were such governmental functions committed permanently to definite individuals, but one or several were chosen whenever the occasion arose requiring their services ; e. g., as administrators of temporalities, as judges for this or that case. So, too, the bishop, when matters of grave consequence 242 THE EPISCOPAL CURIA 243 of an administrative nature had to be confronted, was wont to call in the entire presbytery for their discussion, deliberation and advice. With the cessation of persecutions in the fourth century, and the consequent increase in the number of faithful, it became impos­ sible for the bishop to govern the diocese in the manner just described. Accordingly, ecclesiastical offices began to be created. The first office was probably that of the archpriest in the fourth century. It was the duty of this official, who was the chief among priests, to supervise the conduct of the presbyters, to oversee everything connected with the sacred ministry, to act as first assistant to the bishop in pontifical functions, and to replace the bishop in the offer­ ing of Holy Mass, the dispensation of the sacraments, etc., during the latter’s absence. About the same time we find mention of the archdeacon, or the chief among deacons. This officer assisted the bishop in the government of the diocese, i. e., in all things which concerned its external policy, administration of temporalities, and other matters involving the exercise of jurisdiction Both the arch­ priest and the archdeacon lived in the episcopal city, as did all the other clergy', for, as yet, the rural sections had no resident clergy, and moreover, they were the only two clerics holding ecclesiastical offices, or permanent charges. Until the fifth century' the Christians of the rural districts were cared for by the clergy' of the episcopal city, and these were accus­ tomed to return home immediately after their duties had been performed. But by the fifth century the rural Christian population had increased sufficiently' to warrant the erection of parish churches and the appointment of resident parish clergy. At the same time we find chorepiscopi, i. e., as we have seen, rural clerics with both the episcopal power of orders and jurisdiction ; however, they were onlyauxiliary bishops to the city bishop, and consequently they were his vicars. In many dioceses, however, in place of chorepiscopi we find rural archpriests supervising the conduct of the clergy and all mat­ ters belonging to the sacred ministry, and rural archdeacons exercis­ ing administrative or governmental functions, but whether each archpresbyteriatc comprised a number of parishes is not certain. Probably' the rural archpriest was at first the rector of some rural mother parish church, and exercised vigilance over the clergy of both his own church as also of those filial churches which had developed from the mother church. Thus the rural archpriest would differ from the rural dean (decanus) who appears somewhat later, i. e., between the sixth and ninth centuries. The latter presided at the monthly conferences attended by the pastors of the surrounding territory or deanery, which conferences were enjoined by law for the purpose 244 THE EPISCOPAL CURIA of solving theological and pastoral difficulties, of correcting abuses, and of providing mutual aid and counsel. In time, both the names and offices of rural archpriest and rural dean became synonymous, and merged. As time went on both the archdeacon and archpriest abused their authority. The archdeacons (both in the episcopal city and the country) had originally the duty of educating aspirants to the sacred ministry, of presenting them to the bishop for ordination, of watching over their conduct and morals, of administering the goods of the Church, repairing sacred edifices, visiting the diocese when deputized by the bishop, and of governing the diocese (in the case of the city archdeacon) during the bishop's absence. Gradually, however, these officers arrogated to themselves other powers, e. g., that of convok­ ing synods, of setting up their own tribunals, of appointing pastors and rural deans, of conducting canonical visitations in their own name, and inflicting canonical censures. In the same way the arch­ priests, who by law had but the right of surveillance and inspection, began also to conduct visitations and preside at trials. Since these officers were generally chosen without the interven­ tion of the bishop, sometimes by the cathedral chapter, sometimes by the local clergy', sometimes by the civil authorities, and since, moreover, their’s was a life tenure, in order to restrain their excesses the bishops in the 13th century began to appoint general delegates, now known as vicars-general for the episcopal city, and vicars-forane for the rural sections, with powers similar to those of the archdea­ con- and archpriests. Since these new officers were both appointed by the bishop and removable from office at his good pleasure, there was less opportunity for them to abuse their authority, for as soon as excesses manifested themselves in the case of any individual officer, the bishop could remove him without difficulty. As a matter of fact, the institution of vicar-general and vicar-forane has lasted now for six centuries, while, in the face of such concurrent and rival jurisdiction, that of the archdeacons and archpriests soon waned, so that already’ by’ the time of the Council of Trent, they’ are little more than a name. At the present day the honorary title alone of these offices is retained in many chapters with certain honorary pre­ rogatives, e. g., the archdeacon still presents candidates to the bishop at the time of ordination, and the archpriests have the right of precedence over other canons in the chapters. THE EPISCOPAL CURIA 245 §1. The Vicar-General (c. 366-371) Definition—The vicar-general, as the name implies, is a priest lawfully appointed to exercise ordinary jurisdiction in the whole diocese and in the bishop’s name (c. 366, §1). We say, 1) a priest, although nothing forbids the appointment of a coadjutor (auxiliary) bishop to this office, if there be one. We say, 2) ordinary jurisdiction, for the vicar-general is not a mere delegate of the bishop: his powers are defined and attached to his office by the common law, which notes are characteristic of that species of jurisdiction called ordinary as opposed to delegated, the latter being committed to the person, as we have seen. Wc say, 3) in the whole diocese, and therefore this vicar of the bishop is called \-\ctvc-general as opposed, e. g., to the vicar-forrtwr. Nevertheless, the authority of the vicar-genera! is not absolutely general, but general only within limits, and relatively speaking. For as a rule, the vicar-general should not exercise con­ tentious jurisdiction, this being reserved to another cleric called the Official. Nor has he legislative powers, although he may dispense from the law and issue precepts. Consequently, the vicar-general exercises only general administrative or executive jurisdiction in the diocese. We have enumerated certain powers comprised under this term above (cfr. p. 237). And even in the exercise of administrative jurisdiction the powers of the vicar-general can be curtailed by the common law, by diocesan statutes, and the bishop’s instructions, or reservations, as we shall see. We say, 4) in the bishop’s name, for the vicar-general, as the name implies, exercises a vicarious, not original, jurisdiction, although such vicarious jurisdiction is never­ theless ordinary and not delegated. He represents the bishop and acts in his place (vicem gerit episcopi). Appointment—There may be but one vicar-general in tht diocese to avoid conflicts and confusion. But several may be appointed if the diversity of rites, or the extent of the territory, makes this imperative. In the appointment of the vicar-general the bishop is entirely free and independent so that no rights of election, presentation or nomination on the part of others is admissible. The same freedom the Code accords the bishop in the removal of his vicar-general. That is, the vicar-general is removable ad nutum episcopi, no particu­ lar canonical cause, or charge being required ; but the cleric’s good name and honor cannot be prejudiced (c. 192, §3). When the reason for the removal is obvious to all, e. g., infirmity, 246 THE EPISCOPAL CURIA such prejudice to honor and good name cannot arise from the removal (c. 366, §2). Qualifications—The vicar-general must be a priest of the secular clergy. An Apostolic induit is required for the appointment of a religious to this office. The reason is that by virtue of their rules, constitutions and the common law, religious must reside in their houses, and lead a community life. But where an entire diocese is cared for by a certain group of religious, the vicar-general may be chosen by the bishop from the religious community. Such is not the case where a religious heads a diocese and the majority of priests are either seculars, or do not belong to his community. The vicar-general must be at least 30 years of age, have a doctorate or licentiate in theology and canon law, or at least be well versed in these branches. Moreover, he must be a man of sound doctrine, tried virtue, prudence, and executive ability. To preclude nepotism, the bishop is forbidden to give this office to any blood relative of his in the first degree, or the second degree touching the first. Thus, a brother or nephew is excluded, but not a first cousin. Neither should a pastor be appointed vicar-general, save where this is necessary. The bishop is not forbidden to appoint a priest of his own diocese to this office. Some decisions of the Holy See in prc-Code days seemed to imply the contrary, probably to insure the vicar­ general a larger measure of independence in the discharge of his office (c. 367). Rights and powers—By virtue of his office the vicar-general . possesses the same amount of administrative jurisdiction in the whole diocese as has the bishop jure ordinario, saving cases reserved to the bishop (c. 368, §1). We say administrative jurisdiction, for the vicar-general, not being the Official, has no ordinary judicial powers. We say, as has the bishop jure ordinario, for the bishop may have some delegated powers of a special nature from the Holy See, which do not then belong to the vicar-general. But quinquennial, and any other habitual faculties which the bishop may have received from the Holy Sec belong ipso jure to the vicar-general (c. 368, §2). We say, saving cases reserved to the bishop. This can be done either by the law or by the bishop himself. The law reserves the following cases to the bishop, and excludes the vicar-general without a special mandate from the bishop, e. g., during a visitatio ad limina : 1 ) To grant letters of excardination and incardination (c. 113) ; THE EPISCOPAL CURIA 247 2) To fill vacant ecclesiastical offices (c. 152); 3) Ίο convoke a synod (c. 357, 81); To name honorary canons (c. 406, §1); 5) To appoint pastors (c. 455, §3); f.) To remove parochial vicars of every description (c. 477, 801 To found religious Congregations (c. 492, §1); g) To erect pious associations (c. 686, 84) ; 9) To reserve sins and censures (c. 893, §1) ; 10) To £rant dimissorial letters (c. 958, §1, n. 2) ; 11) To permit a marriage of conscience (c. 1104) ; 12) To permit the construction of churches (c. 1162, §1); Ij) To authenticate relics (c. 1283, 82) ; 14) To consecrate sacred places supposing he has episcopal orders (c. 1155); 15) To fix the amount of fees for celebrating Mass in a strange church (c. 1303, §3) ; 16) To erect, unite and confer benefices (c. 1414, 1423, 1432) ; 17) Ί'ο inflict ecclesiastical penalties in the strict sense (c. 2220) ; 18) To remit penalties applied perhaps by himself in the excep­ tional capacity of judge (c. 2236) ; J9) 4'o absolve from public apostasy, heresy or schism (c. 2314, §2). The above cases arc reserved by law to the bishop in the sense that the vicar-general needs a special mandate from the ' bishop before he may proceed. Whether a general formula of authorization suffices to give jurisdiction in all the foregoing cases, or whether each case must be specified, is disputed among authors. It is like­ wise disputed whether the jurisdiction so conferred upon the vicar­ general would be ordinary or delegated. The bishop may, in addition to the powers reserved to him by law, reserve other cases to himself. But these should not be so numer­ ous as to amount to a virtual abolition of the office. For the Code imposes upon bishops that they, as a rule, have a vicar-general (c. 366,81). Identity of offices—The vicar-general. is said to form one and the same court with the bishop. This is true if the vicar-general is at the same time the Official, in which case no appeal would lie from the sentence of the latter to the bishop, but only to the court of higher instance. In the exercise of administrative jurisdiction this identity of office and juridical personality is likewise maintained, but not so 248 THE EPISCOPAL CURIA perfectly. On the one hand, a favor denied by the bishop can never be granted by the vicar-general ; while a favor denied by the vicar­ general cannot be validly granted by the bishop so long as the latter is unaware of the vicar-general’s action (c. 44* §2). On the other hand, one can take recourse to the bishop from the administrative acts of the vicar-general, e. g., instructions, precepts, denial of favors, etc., provided it is a matter which the bishop himself could recon­ sider had he acted in the first place. To preserve unity of action and discipline in the diocese, the Code commands the vicar-general to report all important matters to the bishop which have been done, or should be done, and to abide by his decision (c. 369). Privileges—The vicar-general takes precedence, next to the bishop, over all the clergy of the diocese, but not over titular bishops, unless he is a titular bishop himself. In the latter case he enjoys all the other honorary privileges accorded to titular bishops (c. 370). If the vicar-general is not a titular bishop, he enjoys during his term of office the privileges and insignia of a titular prothonotary Apostolic. This entitles him, among other things, to wear a black cassock having an unfolded trail, a silk belt and two pendants; also a black rochet, and mantelleta. He may use the hand-light (bugia, palmatoria) at Mass. Often the vicar-general is raised to a higher rank of dignity in virtue of papal induit, being made a monsignor, or member of the papal household, in which case his privileges and insignia are more prominent than those just described (c. 370, §2). Cessation of jurisdiction—The jurisdiction of the vicar-general expires: 1) by resignation of office accepted by the bishop; 2) by removal from office; 3) by vacancy in the episcopal see. Hence, at the moment of the bishop’s death, transfer, etc., the vicar-general also goes out of office, since he and the bishop form one court, or one juridical person. For the same reason the vicar-general’s jurisdic­ tion ceases temporarily, i. e., is suspended, with the suspension, for any cause, of the bishop’s jurisdiction (c. 371). §2. The Chancellor, Notaries, and the Diocesan Archives (c. 372-384) The chancellor—The chancellor is a priest whose right and duty it is: 1) to file all official documents in the diocesan archives; 2) to dispose them in chronological order; and 3) to index them. In addition, the chancellor usually receives delegated powers, e. g., to issue dispensations, permissions and other rescripts. THE EPISCOPAL CURIA 249 Eveiy bishop must have a chancellor in his curia. If necesary, he may be given an assistant called the vice-chancellor. He is removable ad nutum episcopi. Notaries—By virtue of his office the chancellor is an ecclesiastical notary. In addition, the bishop may appoint other notaries cither with general authority to act in all cases, or in certain kinds of cases, e. g., trials, summary marriage processes, etc., or for this or that specified case. A notary is a functionary whose rights and duties are: 1) to reduce to writing episcopal enactments of every description, e. g., appointments, regulations, contracts, etc.; 2) to keep an official record or chronicle of the diocesan administration; 3) to produce, for those who have a legitimate right and interest to examine them, the documents of the archives; 4) to draw up and authenticate ecclesiastical documents; 5) to authenticate copies of the original records of the archives. Notaries may be suspended, or removed, from office at the pleasure (ad nutum) of him who created them, e.g., the bishop, the judge, etc. The diocesan archives—Every bishop must have two archives: a public and a secret archive. All documents not of a defamatory nature which pertain to the spiritual or temporal affairs of the diocese, e. g., Apostolic induits, appointments, contracts, public dis­ pensations, records of confirmation, ordination, etc., should be kept in the public archive. In the secret archive must be kept all docu­ ments whose revelation might impair one's good name, c. g., the acts of a criminal trial, records of dispensations granted for the internal extra-sacramental forum, etc. Documents may be taken out of the public archives with the permission of the bishop or vicar-general. Ordinarily such docu­ ments must be returned within three days. §3. Synodal Examiners and Parish Priest Consultors (c. 385-390) Definitions—A synodal examiner is a priest, chosen in synod, upon whom devolve two duties: 1) to participate in the examina­ tions conducted for testing the fitness of candidates for vacant parishes; 2) to advise the bishop whether he should issue the decree of removal from benefice in the case of irremovable pastors, (c. 2147, j-7·), or removable pastors (c. 2160), non-resident clerics, (c. 2168, sQ-)> clerici concubinarii (c. 2176 sq.), and negligent pastors, (c. 2182). 250 THE EPISCOPAL CURIA Parish priest consultors (parochi consultores) arc priests, chosen in synod, with the duty of advising the bishop whether the decree of removal advocated by the synodal examiners should be confirmed against the objections of the incumbent in two cases: 1) when an irremovable pastor objects to his removal from the parish (c. 2153) ; 2) when a removable pastor objects to his transfer to another parish (c. 2165). The office of synodal examiner was created by the Council of Trent (sess. 25, c. 10, 18, de ref.) for testing the fitness of candi­ dates for parishes calling for a competitive examination (concursus). Their services must also be employed under the Code for all exam­ inations aimed at testing the fitness of candidates for parishes of any kind. They may, but need not, be employed for other exam­ inations, c. g., in the case of candidates for orders, the junior clergy examinations, etc. The additional duties imposed upon them in reference to advising the bishop concerning the removal of beneficiaries was enjoined by the decree Maxima cura of the Con­ sistorial Congregation, Aug. 20, 1910 (Acta Π, 636). The office of parish priest consultor first appears in the decree Maxima cura just cited. One must not confuse the synodal examiners with the synodal judges, who occur in Book IV, and who, appointed in synod, have the duty of sitting in with the Official to form a collegiate tribunal at a formal trial. Nor must parish priest consultors be confused with diocesan consultors, whose office will be described below. Qualifications—The Code decrees nothing concerning the qualifications of synodal examiners and parish priest consultors other than that they should be priests, and that a cleric cannot be examiner and consultor in the same case, e. g., to advise whether the decree of removal should be issued and also confirmed, although otherwise he may hold both offices. The Council of Trent (l.c.) permits regulars as well as secular clerics to assume the office of synodal examiner. Λ decree of the Consistorial Congregation desires that the vicar-general be excluded from the office of examiner (Oct. 3, 1910; Acta II, 854). The same decree explains that only pastors must be chosen as parish priest consultors, but these may be religious or secular. Appointment—Every diocese must have examiners and parish priest consultors chosen in synod, hence the name. The candidates are proposed by the bishop, and voted upon by those taking part in the synod. They should not number less than four, nor more than twelve. In those dioceses which do not hold synods the examiners and THE EPISCOPAL CURIA 251 consultors arc appointed outside of synod by the bishop with the advice of the cathedral chapter, or the diocesan consultors. This procedure is followed also when a vacancy occurs between synods. The clerics so appointed are called pro-synodal examiners and parish priest consultors. Synodal, as also pro-synodal, examiners and parish priest con­ sultors are appointed for 10 years, i. c., from synod to synod. But a pro-synodal examiner and parish priest consultor dates his incum­ bency from the moment of his appointment outside of synod, where synods arc not held. In the case of a pro-synodal examiner or consultor appointed to fill the vacancy of an office before the expira­ tion of the 10 years, e.g., by reason of the death, resignation, etc., of the incumbent, the one so appointed remains in office only for the duration of the unexpired term of his predecessor. One may be reappointed or elected to the office of examiner and consultor repeatedly. Loss of office—Synodal and pro-synodal examiners, and parish priest consultors lose office: 1) upon the expiration of their term; 2) by resignation after this has been accepted; 3) by removal decreed by the bishop, who, however, needs the advice of the cathedral chapter or the diocesan consultors, and a grave cause is required for the removal. §4. VlCARS-FORANB (c. 445-450) Definition—A vicar-foranc is a priest placed by the bishop at the head of a rural vicariate, with the duty of watching over the clergy' and the exercise of the sacred ministry within his district, and reporting to the bishop at stated times on the condition of his vicariate. A rural vicariate is one of several subdivisions into which the bishop must divide his diocese, each vicariate to comprise a number of parishes. At one time, as we saw, these districts were called rural archpresbyteriates and rural deaconries, and the priest placed over them was called the rural archpriest, or the rural archdeacon. The Code speaks of vicars-forane. In English-speaking countries it has been customary to speak of the rural dean, and the rural deanery, and this usage may be retained. Powers of the rural dean—The rural dean has the following rights and duties in virtue of common law, namely: 1 ) To watch whether the clerics of his deanery lead a life in conformity’ with the sacred canons, and discharge their duties particularly with respect to residence, preaching, catechetical instrue- 252 THE EPISCOPAL CURIA tions and the care of the sick; whether the decrees issued by the bishop on the occasion of his visitation are being enforced; whether sufficient attention is paid to the proper matter for the holy Sacrifice ; whether decorum and cleanliness are maintained in the churches and their sacred furnishings, especially with regard to the reserva­ tion of the Blessed Sacrament and the celebration of Mass; whether the sacred functions are celebrated as prescribed by liturgy; whether ecclesiastical property is carefully administered, and obligations attaching to church endowments, Mass obligations in particular, are faithfully fulfilled; and whether the parish books arc properly written up and conserved ; 2) To visit the parishes of his deanery at stated intervals, as determined by the bishop, to the end that he may acquaint himself with the conditions above referred to; 3) To convoke and preside at theological conferences of the priests of his district on the days designated by the bishop; 4) To provide material and spiritual assistance to any seriously ill pastor of his deanery, and to see to it that if the priest dies he will receive a decent Christian burial, taking care that the books, documents, sacred furnishings and other church goods arc not lost or carried off, upon the pastor's death ; 5) To report to the bishop at least once a year on the state of his deanery. The above powers the dean has in virtue of common law. In addition he will have such delegated power as the statutes of the diocese, or the bishop may give him. Thus, the Code desires that the rural dean be given faculties to absolve from diocesan reserved cases (c. 899). The dean in some places is also authorized to install all new pastors in his district, to dispense individuals, families and communities from the laws of fast and abstinence, etc. The jurisdiction of the dean is ordinary and vicarious in those cases where he proceeds in virtue of common law. His is not a purely ministerial function, hut an exercise of administrative jurisdic­ tion, assisting as he does in the enforcement of the law by surveillance, much as the Apostolic Delegate can be said to have ordinary juris­ diction of surveillance. His jurisdiction is delegated in respect to any faculties the bishop, or diocesan law, may confer on him. Privileges—The rural dean has a right to a seal of his own. He takes precedence over all the clergy of his deanery, provided these can show no cause or title giving them higher rank, hence his title of dean. In disputed cases it is the right of the local Ordinary to issue a provisional decree deciding the controversy. CATHEDRAL CHAPTER 253 ART. II. The Episcopal Senate In the government of the diocese, the bishop, as we said, is assisted not only by his curia, but also by his senate. The episcopal senate may be defined as that body of clerics who : 1) during the occupancy of the see {sede plena) have the right and duty to counsel the bishop on matters determined by the common law (cfr. below) ; and who, 2) during the vacancy of the see {sede vacante) succeed the bishop in the government of the diocese (c. 391). In most countries the episcopal senate is the cathedral chapter. In other countries where the cathedral chapter docs not not exist as with us, the diocesan consultera form the bishop’s senate (c. 427). We shall treat of: 1) the history and organization of the episcopal senate; 2) the office of that senate sede plena', 3) the office of the same body sede vacante. §1. History and Present Organization of the Episcopal Senate A. The Cathedral Chapter (c. 391-422) Historical notes—In the early ages of the Church, as we have said, the bishop was assisted both in the sacred ministry and the government of the diocese by his entire presbytery. But while the administrative and judicial functions were withdrawn from the presbytery as such and committed to certain individuals in the fourth century, notably the archpriest and archdeacon, it is not certain when deliberative functions were withdrawn from the clerics of the episcopal city as a whole and entrusted to what is now called the cathedral chapter. The cathedral chapter considered as a body of clerics (canons) attached to the cathedral church with the obligation of reciting divine office daily in choir, of celebrating a daily conventual Mass, and of assisting the bishop in pontifical functions, probably took defi­ nite shape and became a universal institution only after S. Chrodogang, Bishop of Metz, formulated a rule of common life for the secular clergy. Those who observed the common life were called canons, probably from the fact that they led a life more in harmony with the sacred canons, while as a body they were called a chapter 25+ CATHEDRAL CHAPTER probably from the fact that they came often together to have a chapter of the rule read to them. Such chapters we find not only at the cathedral church, but at others as well. These latter churches are called collegiate churches of which Santa Maria Maggiore and Santa Maria in Cosmedin in Rome may be cited as examples. Though the secular canons led a life in common without vows, others began to take vows like religious, and these have since been known as canons regular in distinction to secular canons. The former constitute a religious organization. In time the secular canons grew weary of the common life, and succeeded in having the common funds divided equally among them. Today the members of secular chapters are still called canons, since they retain some observance of the original rule, e. g., choir, conventual Mass, etc. Although we do not know at what precise time the cathedral chapters became the exclusive advisory bodies of the bishop, this much is certain that after the eighth century they grew in power and prestige, so much so that by the 12th century they had definitely replaced the ancient presbytery : 1) as the bishop’s senate; 2) as the ruling body during the vacancy of the diocese; 3) as the electoral body to choose the new bishop to the exclusion of all other clergy of the diocese. Present organization—A chapter, whether cathedral or collegi­ ate, may be defined as a college of clerics instituted by the Holy Sec for the purpose of celebrating divine services more solemnly in a church. In addition the cathedral chapter forms the bishop’s senate. By the very nature of their office all canons arc bound to live near their church, though they are not bound to common life. For they have the duty to recite the canonical hours and to attend a conventual Mass daily in choir. Moreover, the cathedral canons must assist the bishop when he pontificates. In cathedral and collegiate chapters we distinguish between those who have a right to precedence, and these are called dignitaries, though the dignitaries may vary in the different chapters, e.g., arch­ priest, archdeacon, provost, etc., and canons without precedence, who have no special name. Also we have, as not belonging to the chapter with a right to vote, or the obligation of reciting office, etc., various lower beneficiaries and officers as the chaplain, the /nansionarii, singers, porters, etc. Among the canons proper some have special duties to perform, the more important being those of the canon theologian who has the obligation of expounding the Sacred Scrip­ tures, and the canon penitentiary who hears confessions in the chap­ ter church with ordinary jurisdiction and with faculties to absolve from cases reserved to the bishop. CATHEDRAL CHAPTER 255 Every chapter must be endowed with sufficient revenues to assure a decent maintenance for its members. The salary of a canon is called a prebend, and the recipient thereof a prebendary. In addi­ tion, each canon receives his quota of daily distributions as compensa­ tion for and inducement to, his attendance at divine services which, therefore, he forfeits by his absence. The revenues of some chapters consist solely of daily distributions. Ever}· chapter is a persona moralis collegiatis, i. e., an ecclesiasti­ cal corporation. It may call its own meetings and enact its own statutes without the bishop’s permission. But a cathedral chapter has a two-fold corporate existence; as the bishop’s senate it has the bishop as its head who convenes it and presides at its meetings in matters relating to the government of the diocese; as a corporate body of its own neither the bishop, nor the vicar general as such, has membership therein, nor the right to vote in purely capitular matters. Canons take precedence over clerics who are not canons, unless the latter can show some special title to higher rank, c. g-, the vicar­ general even if he is not a canon. Moreover, they have a distinct choir dress determined usually by Apostolic induit, but consisting in the main of rochet, mozzetta, cappa and almutium. A few canons may also wear a ring, pectoral cross, purple cassock and even the mitre. B. Diocesan Consultors (c. 423-428) Historical notes—The Church desires that cathedral chapters be organized in every diocese. This is evident from the fact that even for missionary countries the Congregation of the Propagation of the Faith has urged their establishment, or restoration, if not in the full sense of the law, then in some modified form. Thus in England, Ireland, Holland, Canada, etc., due to the lack of endow­ ment and the insufficiency of priests, - cathedral chapters of canons exist, with no prebends on the one hand, but on the other hand without the obligation of choir, conventual Mass, assistance at pontifical functions, etc. Hence, these canons can have the charge of souls, since they are not bound to the law of residence in the same sense as regular cathedral canons. They may also wear a distinct garb generally speaking, its form being determined by Apostolic induit. Saving liturgical functions, these cathedral chap­ ters resemble ordinary cathedral chapters in all other respects: they form the bishop’s senate, and govern the diocese during a vacancy. 256 DIOCESAN CONSULTORS In the United States we have not even the modified form of cathedral chapters. The American Archbishops, who gathered at Rome in 1883 to prepare plans for the III Plenary Council, were urged by the Propaganda to introduce cathedral chapters such as then existed in England, Ireland, Holland, etc., but the American Prelates persuaded the Holy Sec that conditions in this country had not yet permitted the erection of such chapters. As a com­ promise the HI Plenary Council of Baltimore, in the following year (1884) made it mandatory upon every bishop to appoint a board of diocesan consultors, a thing which had obtained in cer­ tain of our dioceses through custom, and which had been recom­ mended universally by the II Council of Baltimore, but not com­ manded. The institution of diocesan consultors, which may be called a characteristically American institution, has now been made a part of common law for all those countries and dioceses where cathedral chapters are not to be found. Organization—Diocesan consultors are a body of clerics who counsel the bishop in certain aises determined by law, and who govern the sec during its vacancy (cfr. c. 427). They must number not less than six, or in very small dioceses not less than four. They should be priests known for their piety, good character, learning and prudence. They should be secular priests (Pont. Com. Jan. 29, 1931; Acta XXIII, 110). They should live in, or near, the episcopal city so that their services may be available (c.425, SI). Where the diocesan consultors number only a few, say four, it is not advisable that the vicar-general belong to their body lest they lose their independence, since the vicar-general forms one juridical person with the bishop (S. Consist. C., Feb. 27, 1914; Acta VI, III). Diocesan consultors are freely appointed by the bishop for a term of three years. They may be reappointed for an indefinite number of terms, but unless a consultor is reappointed some other cleric must replace him. And such replacements or reappointments must occur every three years. Should a consultor for any reason fail to fill his complete term, e. g., through death, resignation, etc., the bishop, with the advice of the other consultors, appoints a priest in his place to hold office for the duration of the unexpired term. The term of office usually expires for all the consultors at the same time, since they are supposed to be appointed in a body at one time. Should that term of three years expire during the vacancy of the diocese, the consultors remain in office until the new bishop takes possession of his office, and until he has provided for a new body DIOCESAN CONSULTORS 257 of consultors by replacement or reappointment. But if only one or the other consultor dies or resigns during the vacancy, the diocesan administrator appoints another with the consent of the remaining consultors. One so appointed needs the confirmation of the new bishop to remain in office after the occupancy of the sec (c. 424-426). A diocesan consultor may not he removed from office before the expiration of his term, save for a just cause. Even so, the bishop must consult and obtain the advice of the other consultors on the removal (c. 428). The body of diocesan consultors forms the bishop’s senate in those dioceses which have no cathedra! chapter. Hence, whatever rights and powers the cathedral chapter has by law, whether sede plena or sede vacante, the same belong to the diocesan consultors (c. 427). §2. Powers of the Episcopal Senate sede plena The powers of the episcopal senate during the occupancy of the see arc those of counseling the bishop in the cases where the law calls for their deliberation (c. 391,427). Sometimes the bishop needs only their advice to proceed with some business licitly and validly, sometimes he needs their consent. The Code requires only the advice of the cathedral chapter, or the diocesan consultors, in the following cases: 1) To appoint pro-synodal examiners and parish priest con­ sultors, i. e., outside of synod (c. 386) ; 2) To remove synodal and pro-synodal examiners and parish priest consultors from office (c. 388) ; 3) To fix the number of prebendaries in chapters (c. 394, §1 ) ; 4) To appoint titular (real) canons (c. 403); 5) To erect removable parishes, and to declare removable parishes irremovable (c.454, §3); 6) To replace a diocesan consultor who goes out of office before the expiration of his term, or to remove a diocesan consultor (c. 426, §3; 428); 7) To reserve cases outside of synod (c. 895) ; 3) To draw up the schedule of diocesan funeral fees (c. 1234) ; 9) To unite, transfer, divide and dismember benefices, e. g., parishes (c. 1428) ; 10) To order extraordinary processions (c. 1292) ; 11 ) To appoint to the seminary hoards, and the diocesan board of temporal administration (c. 1359, §2; 1520, §1) ; 12) To decree the penal suppression or transfer of a parish church title (c. 2292). 258 DIOCESAN CONSULTORS The consent of the cathedral chapter, or diocesan consultons, is required by the bishop: 1 ) To introduce new prebends in chapters, and to restore former extinct dignities (c. 394, $2) ; 2) To erect confraternities and pious unions in the cathedral church (c. 712, $2); 3) To alienate ecclesiastical goods or property whose value ranges between 1,000 and 30,000 lire, computing the normal gold lira as five to the dollar (c. 1532, §3) ; 4) To lease church property longer than nine years if the value exceed 1,000 lire; or for less than nine years if the value exceeds 10,000 lire, but if the lease is both beyond nine years and its value exceeds 30,000 lire, an Apostolic induit is necessary (c. 1541, §2). §3. Powers of the Episcopal Senate sede vacante (c. 429-444) During the vacancy of the see the government of the diocese nasses to the cathedral chapter or the diocesan consulter*, unless in some oarticular case the Holy See shall have ruled otherwise (c.431). Vacancy of the see defined (c. 430)— I he vacancy of the diocese must not be confused with the obstruction of the diocese (sede im­ pedita). The latter condition is verified when the bishop is impeded from communicating with his people and governing the diocese even by letter because of exile, captivity or some other incapacity, e.g., mental infirmity. In that case the vicar-general, or some cleric appointed by the bishop for such contingency, takes charge. 'I’he bishop may appoint several clerics to succeed one another, where necessary. If all these clerics are similarly impeded, the rules governing the vacancy of the diocese obtain (c. 429). Neither is the diocese vacant, but only impeded, when the bishop’s jurisdiction is suspended. If the suspension is public, the Holy See must be informed thereof by the archbishop, or if the latter is the bishop under suspension, by the senior bishop of the province. Naturally, the vicar-general cannot take charge here, because his jurisdiction is suspended simultaneously with that of the bishop (c. 429). The diocesan see, then, becomes vacant: 1) through the bishop’s death; 2) resignation ; 3) transfer to another diocese; 4) privation of office. But neither the resignation becomes effective before notice of its acceptance by the Sovereign Pontiff has been received, nor the removal or transfer before the bishop receives DIOCESAN ADMINISTRATOR 259 notice thereof. Consequently, any acts performed by the bishop or vicar-general before receiving the notices described are licit and valid, saving the conferment of offices and benefices. The same holds good before the vicar-general receives notice of the bishop’s death. In the event of a transfer the diocese, upon the issuance of the Apostolic Letters of transfer, does not become vacant until the bishop takes canonical possession of his new see and, until such time, he retains in the former diocese the powers of a vicar-capitular or diocesan administrator (c. 430). J'icar-capitular and diocesan administrator—Within 8 days after being notified of the vacancy of the see the cathedral chapter must elect a vicar capitular, and the diocesan consultors a diocesan administrator, who will govern the diocese in their stead (c. 432). This diocesan administrator must not be confused with the Apostolic Administrator described above. The powers of the vicar-capitular and the diocesan administra­ tor are identical with those of the bishop in matters spiritual and temporal save where the law makes restrictions. They are local Ordinaries in the sense of c. 198, and therefore, whatever powers the Code accords to local Ordinaries must be considered as belong­ ing to the vicar-capitular and the diocesan administrator unless the contrary is stated in the law (c. 435). While neither the cathedral chapter can restrict the powers of the vicar-capitular nor the diocesan consultors those of the diocesan administrator, by reserving certain rights to themselves, yet restric­ tions arc placed upon those officials by common law. Since their authority is only transitory, they must observe the rule: sede vacante nihil innovetur. The Code at various places is explicit with regard to certain restrictions, and from these we can gather to some extent what otherwise might be included under the prohibition sede vacante nihil innovetur. In particular, the vicar­ capitular and diocesan administrator are forbidden: I ) To carry away, destroy, conceal or adulterate the docu­ ments of the episcopal curia (c. 435, S3); 2) To convene a synod, or to enact extra-synodal laws, al­ though transient instructions, regulations and precepts are per­ mitted (c. 357); 3) To create honorary canons (c. 406, §1); 4) To declare removable parishes irremovable (c. 454, §3); 5) To establish religious Congregations (c. 492, §1); 6) To erect pious associations (c. 686, §4) ; 7) To reserve cases to themselves (c. 893, §1) ; 8) To unite parishes (c. 1423, §1) ; 260 DIOCESAN ADMINISTRATOR 9) To permit an exchange of benefices (c. 1487, $1); 10) To remove the promoter of justice or the defender of the bond (c. 1590, §1 ) ; 11 ) Before the sec has been vacant a year : 1 ) to grant dimissorial letters unless there is urgent need ; and 2) letters of incardination and excardination; 3) to confer vacant parishes of free appointment (c. 958, § 1, n. 3 ; c. 113 ; c. 455, £2, n. 3). But they can appoint paro­ chial vicars of every description, and remove them from office (c. 455, §1 ; c. 477, §1 ). They may, with the consent of the remain­ ing diocesan consultors, appoint temporarily a cleric to replace a diocesan consultor who has died or resigned during the vacancy of the see (c. 426, §5). Saving the above exceptions, the powers of the vicar-capitular and diocesan administrator are identical with those of other local Ordinaries, but to proceed licitly and validly they require the advice or consent of the cathedral chapter, or the diocesan consultors in the same cases as the bishop (cfr. p. 257-258). Loss of office—The vicar-capitular and diocesan administrator lose office: 1 ) By removal decreed by the Holy See ; 2) By resignation manifested in authentic documentary form to the cathedral chapter or diocesan consultors, as the case may be, nor is the validity of such resignation made to depend upon its acceptance by the cathedral chapter in the one case, or the diocesan consultors in the other. 3) By canonical possession of the see by the new bishop (c. 443, §2). Chapter VI THE BISHOP'S ASSISTANTS IN THE SACRED MINISTRY Bishops arc assisted in the government of the diocese by the officers of the diocesan curia and by the cathedral chapter or the diocesan consultors. In addition to the powers of government which constitute the episcopal office, i. c., the duty of watching and guarding their flock, bishops have the duty of feeding their flock, and this constitutes the priestly office. The episcopal office is discharged through the exercise of jurisdiction alone, the priestly office mainly through the exercise of the power of orders. In virtue of their episcopal or pastoral office bishops govern the faithful ; in virtue of the priestly office they sanctify the faithful. The fullness of the priesthood, i. c., the fullness of the power of orders, has been conferred upon bishops to the end that they might sanctify souls through the preaching of the gospel, the adminis­ tration of the sacraments, the offering of the Holy Sacrifice, and the performance of other acts of public worship. The exercise of these acts and functions constitutes what is known as the care (cura) of souls, or the sacred ministry, for it is thus, rather than through the enactment and enforcement of laws (power of government), that souls are directly taken care of, and their spiritual needs are ministered to. It remains to speak in this chapter of those clerics who assist the bishop in the sacred ministry. These are: 1) pastors; 2) parochial vicars; 3) chaplains. ART. I. Pastors History of parishes—In the first three centuries parishes did not exist, for the simple reason that Christians were found almost exclusively in the episcopal city. There the bishop was the sole 261 262 PASTORS pastor; he alone baptized, preached, celebrated Holy Mass and otherwise conducted divine services. In these functions, it is true, he was assisted by his presbytery, the priests, deacons and lower clergy, hut these acted as the bishop's ministers, and always in the cathedral, there being no other churches. With the cessation of persecutions we find the Christians in­ creasing in numbers. And while this did not necessitate as yet the erection of parishes in the episcopal city, by this time we see the faithful in villages and hamlets outside the episcopal city with their own churches and resident clergy. These had authority to say Mass, baptize, absolve from sins, administer Holy Communion and Ex­ treme Unction, bless marriages, preach, and conduct public worship in general. In other words, we have pastors and parishes in the country sections by the fourth century. In the episcopal city, churches other than the cathedral were constructed by pious Christians, and in these there were resident clergy for the celebration of Mass and other acts of devotion. But the conferring of baptism and most other sacraments was still reserved to the bishop. In fact, it is not until the 11th century that we find the parochial system introduced in the episcopal city itself. §1. Pastor Defined In the fullest sense of the word only the bishop may be called the spiritual pastor, for he by original and divine right, both watches and feeds the flock, both governs and sanctifies them. Custom, how­ ever, has given the title pastor to certain clerics other than bishops. These may be called pastors only in a limited sense, since they do not rule but only sanctify. In this latter sense, a pastor may be de­ fined as a priest, or moral person, upon whom as its proper titular, a parish has been conferred with the care of souls, to be exercised under authority of the local Ordinary (c. 451). We say, 1, a priest. Hence, the pre-Codc law has been abro­ gated in virtue of which a parish could be conferred upon a lower cleric on condition that he receive holy orders within a year. We say, 2, a moral person. Such a corporation could be a chap­ ter of canons, a religious Order or Congregation, an independent monastery, etc. In these cases, as we shall sec, the corporation is the habitual pastor, and they must choose a priest as their vicar who will be the actual pastor. We say, 3, to whom a parish has been given. Canon 216 defines a parish as a portion of the diocese with its own church and deter­ mined group of faithful, and with its own rector who acts as pastor PASTORS 263 with the duty of caring for souls. Similar divisions of a vicariate and prefecture Apostolic are called quasi-parishes, and their rectors are called quasi-rcctors. Hence, canonical parishes and canonical pastors exist only in dioceses. And while ordinarily parishes are territorial, being circumscribed by territorial limits, so that all the faithful living within those limits arc by law the pastor’s subjects, still the Code admits national, language and family parishes, so that the rectors in charge of the faithful by reason of nationality, language, etc. are pastors in the true sense of the word, no less than pastors of territorial parishes. We say, 4, upon whom as its proper titular a parish has been conferred. This clause is added to distinguish pastors from certain classes of parochial vicars who, while they have all the rights and duties of pastors, e. g., the administration of a vacant parish, yet govern the parish in administrationem, not in titulum, and can be removed, without the need of any trial or canonical cause, by the mere appointment of a real pastor. We say, 5, with the care of souls. Pastors are the assistants of the bishop in the sacred ministry, not in the government of the diocese. As such, then, they have no jurisdiction in the external forum. For the discharge of their office it suffices that they have priestly orders and a certain measure of jurisdiction in the internal forum, as we shall see. If a pastor assists the bishop in the govern­ ment of the diocese, c. g., as vicar-general, chancellor, diocesan consuitor, etc., this is by special appointment, and not in virtue of the office of pastor. We say, 6, to be exercised tinder authority of the local Ordinary. The bishop, notwithstanding the parochial system now obtaining, and which is of ecclesiastical law, still retains the title and authority of universal pastor of the whole diocese by original and divine right. Therefore, he can exercise any and all acts of the sacred ministry in any parish of the diocese without consent of the local pastor. This he may do also through his delegate. For pastors are in a sense only the vicars and assistants of the bishop; their authority is vicarious or derived, since by divine law only the Roman Pontiff and residential bishops possess original powers in the Church. How­ ever, the pastor is not the bishop’s vicar in the sense that he is his delegate. For the jurisdiction of pastors is ordinary, being attached by common law to their office. And so the rights of pastors cannot be restricted as defined by the common law, because the office of pastor is an institution of papal, not local law. Although, as was said, and explained, quasi-pastors and certain parochial vicars are not pastors, yet because they possess all the 264 PASTORS rights and duties of canonical pastors, whenever the law speaks of pastors we must understand this term as including quasi-pastors and parochial vicars who happen to have full parochial rights, unless the contrary is expressly stated (c. 451, §2). §2. Pastors and Parishes in the United States In this country we had no canonical parishes and no canonical pastors prior to the promulgation of the Code, saving very few exceptions in Louisiana and California. This condition was due either: 1) to the absence of well defined parish limits; or 2) to the absence of irremovable pastors; or 3) to the absence of real estate endowments necessary to constitute benefices. All three of these condi­ tions were considered essential under prc-Codc law to have a can­ onical parish. And so, while in some cases we may have had irre­ movable rectors, and in other cases well defined limits, always the element of benefice was lacking. The Code has introduced certain innovations in virtue of which our parishes are now canonical parishes, and our pastors canonical pastors, without exception. No longer is irremovability required in the pastor, as we shall see. Nor for the erection of a benefice must the endowment for the beneficiary consist of revenues derived from real estate, but it suffices that the beneficiary be assured of decent maintenance through the voluntary contributions of the faithful, in the way pastors have always been supported in this country. All that remains is that a parish have fixed limits and boundaries. Where these limits have not been determined by the Ordinary, they should be so determined, and, until such time, the lines fixed by custom suffice. Eor if custom has no such force, then one knows not what to call those entities. They cannot be called quasi-parishes, for these exist only in vicariates and prefectures Apostolic (c. 216). If certain churches cannot be erected into independent parishes be­ cause of their poverty, or for other reasons, they must be made to depend upon some neighboring parish, and then they will be called subsidiarj- churches, or chapels of case. The divisions of a diocese for the care of souls can now have but one name, that of parishes. (Consistorial C., Aug. 1, 1919; Acta XI, 346). A declaration to the effect that our parishes are canonical ones was explicitly given by the President of the Pontifical Committee, Cardinal Gasparri, to our Apostolic Delegate under date of Sept. 26, 1921 (Bouscaren, o. c. I, 149). The declaration was subsequently transmitted to all the bishops of the United States, but, being of local interest only, was not inserted in the Acta. The Cardinal PASTORS 265 takes occasion to remark that the quasi-parishes of pre-Code days became ipso facto canonical parishes upon the promulgation of the Code, and that a special decree of the Ordinary to this effect was not required, provided the quasi-parishes in question had the Code requisites of a parish, namely, a priest with title to the parish, a Stable revenue though consisting only of free-will offerings, and fixed boundaries. It follows from what has been said that the title of rector for the priest in charge of a parish is no longer admissible in this country, but that of pastor is proper. Also so-called rectories might hence­ forth be called parish houses, or the pastor’s residence. The Code reserves the name of rector for the priest who has charge of a nonparochial church (c. 479j<7·). Of such churches there arc extremely few in the United States due to our missionary conditions. §3. Appointment of Pastors The appointment of pastors belongs to the bishop, not the vicar­ general, without a special mandate. The vicar-capitular (diocesan administrator) can appoint pastors after a year's vacancy in the diocesan see (c.455). Bishops cannot, however, appoint to vacant parishes reserved to the Holy See. These are listed in c. 1435, the more important reservations being those parishes whose incumbent died at Rome, or whose pastor belonged to the Pontifical Household, as in the case of monsignors, or whose incumbent was appointed to a bishopric. But the Apostolic Delegate has faculties to confer such parishes. Otherwise, in the United States there is neither the right of patronage, not that of nomination, to limit the bishop’s right of free appointment to parishes, as often happens in other countries, and in virtue of which the bishop can merely grant canonical institution. Only in the case of parishes entrusted to religious has the religious superior the right to present the candidate for the parish, and the bishop has the right to approve of the choice, thus giving canonical institution (c. 456). As a rule, vacant parishes should be filled within six months, like any other ecclesiastical office. But here the bishop is allowed to defer the provision beyond six months if in his judgment circum­ stances so warrant. In the meantime an administrator is appointed (c. 458). Not more than one pastor can be appointed to a parish. Neither can one priest be appointed to two or more parishes, these being 266 PASTORS incompatible offices. But a priest can hold title to one parish, while acting as administrator of another parish (c. 460). §4. Removal of Pastors In virtue of their office pastors ought to enjoy a certain degree of stability, so that, like their Divine Model, they may become so intimately acquainted with their sheep that they can say: 1 know mine and mine know me. But stability need not imply irremovability, and it admits of degrees. Irremovable pastors have naturally greater stability of office than removable pastors. The Code in admitting the distinc­ tion between these two kinds of pastors automatically acknowledges that canonical parishes can exist with removable pastors at their head (c.454, §2). Irremovability and removability arc relative terms and have a technical meaning. 'That a pastor is irremovable docs not imply that he cannot be removed for any cause until death. Nor because a pastor is removable can he be transferred, or removed from office, at the bishop's good pleasure, at least in the case of secular pastors. But religious pastors arc always removable at the good pleasure {ad nutum) of the bishop, the religious superior being previously notified. So, too, the religious superior may remove the pastor at his good pleasure {ad nutum), the local Ordinary being previously notified. Neither the superior, nor the Ordinary, needs the consent one of the other. But in the event of disagreement, recourse lies to the Holy See in devolutive, the removal taking effect at once (c.454, §5). And the good name of the pastor cannot be allowed to suffer despite the term ad nutum. Secular pastors arc never removable ad nutum, whether they arc removable or irremovable. Always a canonical cause is required, and some sort of canonical procedure, the degree of formality in­ volved in the procedure differentiating irremovable from removable pastors. Both can be removed for administrative reasons, e. g.. in­ competency, old age, ill-will of the people, etc., but a longer adminis­ trative procedure is required in the case of irremovable pastors. Both can likewise be removed for criminal charges, and if these charges arc non-residence, concubinage, or neglect of pastoral duties, an administrative procedure suffices. Finally, an irremovable pastor cannot be transferred against his will administratively without PASTORS 267 sanction of the Holy See, while a removable pastor can be transferred against his will, although an administrative procedure is required. For these procedures in greater detail, cfr. 653 ff. The Code desires that irremovability be regarded as the normal characteristic of every canonical parish (c. 454, 1). It declares that those which are now irremovable cannot be made removable without an Apostolic Induit. It further states that for declaring a removable parish irremovable the decree of the bishop suffices, after consulting with the cathedral chapter (diocesan consultors). And all parishes to be erected after the Code must be irremovable, unless the Ordi­ nary, again consulting with the above bodies, decrees that they be removable (t. 454, §3). The HI Plenary Council of Baltimore ordained, under n. 33, that one-tenth of the parishes in every diocese be declared irremov­ able. This ordinance may now be ignored, and. as was said, the bishop can erect removable parishes indefinite in number. But parishes which were irremovable at the time of the Code cannot be declared removable by the bishop without Apostolic induit, as said in the preceding paragraph. §5. Qualifications Required in Pastors For validity the pastor must be a priest. For licitness he must he a man of good morals, and gifted with knowledge, zeal for souls, prudence, and all other virtues and qualities which common or par­ ticular law requires for the pastoral office (459, §2). Those who possess the above qualifications in a more eminent degree are to be preferred, i.c., the worthier candidate (c. 459, §1)· To arrive at this knowledge the bishop may have to consult the diocesan archives, and, if necessary, gather even secret information concerning the candidate’s moral virtues, (c. 459, §3, n. 1). Concerning the candidate’s intellectual ability, i. e., his learn­ ing, the Ordinary must take into consideration the results of the examinations which the candidate underwent for three years subse­ quent to his ordination (cfr. c. 130). Moreover, a special examina­ tion previous to the appointment must be taken by the candidate in the presence of the bishop, and conducted by the synodal exam­ iners (c. 459, §3, n. 3). In our country it seems to be the custom to dispense from this special examination, and to rely solely upon the success of the examinations taken by the cleric during his seminary years. This will suffice, provided said examinations covered the matter which ordinarily is the subject of the special examinations to ascertain a candidate’s fitness for a vacant parish 268 PASTORS (Code Comm., Nov. 24, 1920; Acta XII, 574). Nor is the special examination required in transferring to another parish, provided the transfer docs not take place at the pastor’s suggestion (Code Comm. ibid. ). The Code renews the law of Benedict XIV Cum illud, Dec. 14, 1742, which required a competitive examination (concursus) in the case of appointment to irremovable parishes (c. 459, §4). The con­ cursus differs from the simple examinations, spoken of thus far, in that the results of the examinations are the sole factor in determin­ ing the worthier candidate, so that one who obtains the highest marks is strictly entitled to the parish. The III Plenary Council of Balti­ more (n. 36) required the concursus for all irremovable rectorships. But a private answer transmitted by the Consistorial Congregation to our Apostolic Delegate under date of June 24, 1931 abrogates this ruling of the Baltimore Council, and declares that for appoint­ ments to parishes in this country, whether removable or irremovable, the simple examination described in c. 459, §3 will suffice. (Cfr. Bouscaren, o. c. vol. I, p. 249). Installation (c. 461). The appointment to a parish becomes effective from the moment of taking canonical possession of the benefice. Before the installation, the new pastor must make the profession of faith according to the formula found at the beginning of the Code. Moreover, until the Holy See rules otherwise, the oath against Modernism must be added, the formula of which is found in the Aeta Apost. Sedis, II, 669 (H. O., Mar. 22, 1918; Aeta X, 136). The manner of installation the Code leaves to particular law or custom, in accordance with c. 1444. In many European countries the pastor is installed by the bishop, or the rural dean. Where formal installations arc not observed, as with us, generally speaking, the appointment becomes effective from the first moment of the actual exercise of the office. If a priest docs not take possession of his parish within the time set by the Ordinary, the latter is free to declare the parish vacant (c. 1444, §2). §6. Rights of Pastors In virtue of their office pastors have all powers requisite for the proper care of souls, and the administration of the parish. Hence, without further delegation, and in virtue of their appoint­ ment alone, pastors may preach, administer all sacraments, saving confirmation and orders, celebrate Holy Mass, administer sacramentals not reserved to bishops, and conduct public worship. PASTORS 269 In the administration of certain sacraments and sacramentals pastors have rights jointly with other priests, e. g., sacramental absolution, private distribution of holy communion, etc. But with respect to other sacraments and sacramentals, pastors have exclusive authority. Such functions which arc reserved to pastors may he called pastoral, or parochial rights. For the licit exercise of these functions there is evidently required, in addition to the power of orders, a certain measure of jurisdiction in the internal forum which is possessed by pastors alone, but which, being ordinary, they may delegate to others. But these functions cannot be exercised outside of the parish, nor generally in favor of non-parishioners even in the parish. However, a pastor may hear the confession of his subjects in any part of the world, and the confession of all penitents within his parish. Within his territory, wc say, a pastor may exercise pastoral rights with regard to his subjects. Now the subject of a pastor, i.e., his parishioner, is a person who has a domicile or quasi'domicile in the parish, or in the case of vagi who have nowhere a fixed abode, these are a pastor’s subjects as long as they are staying in his parish (c. 94). But certain persons, while having domicile or quasi­ domicile in the parish, arc not parishioners, namely: 1) those religious who enjoy episcopal exemption by common law; 2) religious and pious houses which, though not exempt by common law, have been exempted from the jurisdiction of the pastor by Apostolic induit, or episcopal decree, and these will be exempt to the extent described in the decree of exemption, or the faculties of their chaplain; 3) the diocesan seminary; 4) nationals, i.e., those who belong to a national or foreign-speaking parish (c. 464, 1368). With this premised we shall see what functions arc reserved to pastors. Pastoral, or parochial rights—These are listed in c. 462, namely: 1) To confer solemn baptism. Hence, private baptism is not reserved, and it can be given by any priest in a case of emergen^', e. g., in a hospital. Nor can the pastor baptize his subject outside of the parish, as was said. In this case the local pastor may baptize the peregrinas solemnly when it is difficult for the latter to go, or be taken, to his proper parish (c. 738, 739) ; 2) To carry the Blessed Sacrament publicly to the sick in his parish. This custom docs not prevail with us. Communion may be taken privately to anyone by any priest in any parish (849). And this priest, if he has the general faculties of the diocese, may hear the confession of the communicant; 3) To take Holy J'iaticum and administer Extreme Unction 270 PASTORS to the sick in the parish. While private communion for the sick outside of danger of death is not reserved, Viaticum is reserved, even when administered privately. A few cases are excepted : 1 ) Viaticum and Extreme Unction administered to the bishop, this right belong­ ing to the first dignitary of the cathedral chapter (c. 397, n. 3) ; 2) in clerical religions it belongs to the superior (c. 514, §1); 3) in a monastery of nuns with solemn vows to the ordinary con­ fessor, or his substitute ; (c. 514, §2) ; 4) in other lay religions to the chaplain (c. 514, §3); 5) in case of necessity the right belongs to any priest (c. 938, §2). 4) To announce sacred ordinations and the banns of marriage. 5) To assist at marriages, and pronounce the nuptial blessing. For validity the pastor must assist within his own territory; for licitness the parties must also be his subjects, at least the Catholic bride. Hence,’ to assist at a marriage outside of his parish, even though both parties arc his subjects, would be invalid, without permission of the local pastor (c. 1094, 1097). 6) To conduct funerals. Persons who die outside of their parish must be taken to their proper parish church for burial if this can be done conveniently and without expense. Even though this be true, namely, that the funeral can easily be conducted from the proper parish of the deceased, yet anyone, saving religious, may designate the church of his funeral, but the choice need not be presumed by the proper pastor, who can insist upon legitimate proof. The survivors are not permitted to choose a church of funeral other than the proper parish, supposing the absence of inconvenience. 7) To bless houses on Holy Saturday. With us this custom is not observed except in some foreign-language parishes. The bless­ ing of houses outside of Holy Saturday would not be a pastoral and reserved right. 8) To bless the baptismal font on Holy Saturday. 9) To conduct public processions and impart solemn blessings outside of the church. The above is an exhaustive list of pastoral (reserved) rights. From the silence of the Code it follows that certain functions, which might otherwise appear to be so, are not reserved, and can be performed by priests other than pastors, namely: 1) high Masses; 2) the preaching of sermons, although episcopal approval is required; 3) Easter Communion, and so the faithful may make their Easter duty in any parish, or church, but they ought to be encouraged to discharge this obligation in their parish church (c. 859) ; 4) First Communion, whether received privately or publicly, although the pastor is entitled to judge the fitness and proper dispositions of all PASTORS 271 first communicants (c. 854, §5) ; 5) the functions of Holy Week including Mass on Holy Thursday; 6) the blessings on Candlemas Day, Ash Wednesday and Palm Sunday; 7) the churching of women ; 8) benediction with the Blessed Sacrament. Neither are the faithful bound to hear Mass on Sundays and holydays in their proper parish. However, they are not released from the duty of supporting their pastor and parish church. Salary and stole fees—On the principle enunciated by St. Paul that: they that serve the altar partake with the altar, and they that preach the gospel should live by the gospel. ( I Cor. IX, 13-14), every pastor is entitled to a just compensation for his services. As the holder of a benefice the pastor has the right to the revenues from his benefice endowment (c. 1473). With us, revenues and endowment arc one and the same thing,, consisting of a fixed salary derived from the free-will offerings of the faithful. Each bishop determines by diocesan law the salary of the pastors (III Plen. Cone. Bait. n. 273). In addition to his salary, the pastor is entitled to those stole fees which have been sanctioned by custom, or by legitimate taxation of the provincial council (c. 463, §1). With us, stoic fees may be expected for baptisms, marriages and funerals, but in the case of the poor these must be given gratuitous service (463, §4). In the case of the other sacraments no fee may be exacted, but donations spontaneously proffered may be accepted, save offerings made on the occasion of sacramental confession. The stole fees belong to the pastor, even though another priest, e. g., the assistant, performed the service. However, the excess of the ordinary fee may be retained by the minister in this case, pro­ vided the intention of the donor to this effect appears explicitly, e.g., by his statement, or implicitly from circumstances, e.g., the donor is the priest’s relative, it is the priest’s birthday, namesday, etc. (c. 463, §3). Dispensing and absolving powers—In virtue of his office the pastor has no special dispensing powers save these: 1) to dispense from the law of fast, abstinence and the observance of holy days with respect to either individuals or families, but not the whole parish (c. 1245, §1) ; 2) to dispense from marriage impediments in danger of death, and in otherwise urgent cases, if time docs not permit of recourse to the Ordinary, and other circumstances are verified as described in c. 1043-1045. In both cases strangers (peregrini) may benefit by his powers. Neither has the pastor, in virtue of his office alone, special powers to absolve from sins and censures, save one case, namely, 272 PASTORS to absolve during the Easter season from all diocesan reserved sins (c. 899, §3). If pastors have other dispensing and absolving powers, which are not possessed by the ordinary priest, this is in virtue of delegated faculties, which they may have received from the Holy See, the bishop, or the diocesan statutes. Vacation—Every pastor has the right to an annual vacation of two months, to be taken continuously or interruptedly. However, the Code allows the local Ordinary to lengthen or shorten this vacation period for a just cause. With us, due to the scarcity of priests who are available to supply, very few pastors are allowed annually a vacation of two months (c. 465, §2). Management of parish—Every pastor has the power of adminis­ tration in regard to his parish. In respect to administration a parish may be viewed: 1) as a church; 2) as a benefice; 3) as a noncollegiate moral person with property rights. Insofar as the parish is a church, the pastor has exclusive juris­ diction in the following matters: 1) the admission of outside priests who wish to celebrate Mass or conduct other divine services; 2) the enforcement of sacred liturgy in the celebration of divine services; 3) the fixing of the hours of services and the determination of the various devotions; 4) the supervision of whatever pertains to collections, announcements, the arrangement of altars, communion rail, pulpit, organ, seats and pews, ottering boxes, the adornment of the church, the admission and rejection of sacred vessels, utensils or other sacred furnishings; 5) rhe writing and safe-keeping of parish books; 7) the appointment of sacristan, singers, organist, servers, janitor, etc. (c. 484, 1184-1185). Insofar as the parish is a benefice, the pastor has the right to gather the revenues from the endowment, and administer the endow­ ment funds or property. With us, this cannot ordinarily be exercised; the pastor simply draws his salary from time to time out of the collections, there being no real estate constituting the capital (endow­ ment) from which his salary is taken. Insofar as the parish is a corporation vested with property rights, the pastor is the administrator of its temporalities (c. 1476). The pastor is not the owner of parish property, and all contributions, whether in the form of pew rent, seat money, collections, subscrip­ tions, etc. belong to the parish, the pastor being permitted to draw only his salary therefrom. Canons 1518-1528 speak of the duties of administrators in general, and in various places the Code lays down more explicit rulings, e. g., concerning the necessity of observ­ PASTORS 273 ing the civil law in the making of contracts (c. 1529) ; the prohibi­ tion against the alienation of ecclesiastical goods and property beyond certain limits (c. 1532) ; the administration of funds given the pastor in trust (c. 1516-1517) ; the making of donations from parish goods (c. 1535); the acceptance and refusal of donations (c. 1536); the contracting of mortgages and other debts (c. 1538) ; the leasing of church property (c. 1541-1542) ; the filing of deeds and other legal papers connected with property rights (c. 1523, n. 6); the keeping of a record of income and expenditures (c. 1523, n. 5) ; the submit­ ting of an annual financial report to the bishop (c. 1525) ; the need of previous permission of the local Ordinary to institute a lawsuit in the name of the church (c. 1526) ; the invalidity of acts exceeding the bounds of ordinary administration (c. 1527), etc. Every pastor ought also to consult particular ecclesiastical legislation, especially the diocesan statutes, on the administration of church property. Uually what is vague and general in the common law will receive greater specification in the statutes, e. g., as to what sum constitutes an excess of the ordinary administration, for which previous permission must be obtained. In the United States, moreover, since practically every parish is in one form or another incorporated under the laws of the respec­ tive states, the pastor and bishop must he guided by the charter of incorporation in order that their acts may be legally protected in the civil courts. §7. Obligations of Pastors These may be reduced to: 1) the care of souls; 2) the obliga­ tion of residence; 3) the application of Mass for the people; 4) the keeping of parish books; 5) the administration of the temporalities of the parish. Concerning this last point we have already spoken. Care of souls—The care of souls, or the sacred ministry in the strict sense, comprises the following duties, which we briefly enumer­ ate, since they receive more elaborate treatment in manuals of moral and pastoral theology, namely: 1 ) To celebrate Holy Mass, and to conduct other services prescribed by liturgy and canon law (c. 467, §1) ; 2) To administer the sacraments to the faithful whenever these ask for them legitimately (c. 467, §1); 3) To preach the word of God on Sundays and holydavs of obligation (c. 1344) ; 4) ’ To become personally acquainted with his parishioners, so that as a true shepherd he can, like Christ the Good Shepherd, say: I know mine and mine know me (c. 467, §1) ; PASTORS 5) To prudently correct the erring; hence, privately at first, then before two witnesses; finally, publicly if this be necessary to avoid or repair scandal, but safeguarding himself from the possibility of defamation of character and subsequent lawsuits (c. 467, §1); 6) Like the Divine Master Himself, to take a personal inter­ est in the poor and the unfortunate (c. 467, §1); 7) To care for the sick, especially the dying, with the utmost zeal and charity, administering to them the sacraments and com­ mending their souls to God. In danger of death the pastor, or any priest who assists the dying, may and should impart the Apostolic Blessing with a plenary indulgence (c. 468) : 8) To employ great diligence in instructing the children in the Catholic faith ; hence, the need of setting aside some convenient time for catechetical instructions for the children, especially where a parish has no parochial school (c. 467, §1); 9) To promote works of charity, faith and piety, c. g., through the establishment of confraternities and pious unions in the parish (c. 469). Law of residence—That the pastor may attend to the care of souls properly, the law obliges him to live in the parish, and near the parish church (c. 465, §1). Concerning his annual vacation we have already spoken. When the pastor leaves the parish, whether on vacation or for any other reason, if his absence will extend beyond a week, hr must obtain previous written permission from the local Ordinary. When requesting this permission, the pastor must at the same time inform the local Ordinary of the name of the priest who will supply during his absence. If the Ordinary approves of the choice, the priest becomes the vicar-substitute, concerning whose powers more will be said on p. 279 (c. 465, §4). Should it be necessary for the pastor to depart hurriedly so that he has no time to hear from the local Ordinary, he must at once write to the Ordinary telling the reasons for his departure, and naming the priest whom he intends as a substitute. Unless and until the priest so chosen is notified by the chancery to the contrary, he may act with all the powers of a vicar-substitute, the Code itself giving the priest under these circumstances the powers of such a vicar (c. 465, §5). For absences lasting less than a week, the permission of the Ordinary is not required. But even here the pastor should see to it that the faithful are provided for, especially in a case of emergence, c. g., by arranging with them and the neighboring pastor (c. 465, <6 ). PASTORS 275 Missa pro populo—Besides all Sundays, bishops and pastors must apply Mass for their respective subjects on the following days: (S. C. Council, Dec. 28, 1919; Acta XII, p. 42) : 1—The Feast of the Circumcision; 2—Epiphany; 3—Purification of the B. V. M. (Feb. 2); 4—St. Mathias (Feb. 24); 5—St. Joseph (Mar. 19); 6—Annunciation (Mar. 25) ; 7, 8—Monday and Tuesday after Easter; 9—Sts. Philip and James (Mayl); 10—Finding of the Cross (May 3); 11—Ascension Day; 12—Corpus Christi; 13, 14— Monday and Tuesday after Pentecost; 15—St. John Baptist (June 24) ; 16—Sts. Peter and Paul (June 29) ; 17—St. James (July 25) ; 18—-St. Anne (July 26); 19—St. Lawrence (Aug. 10) ; 20—As­ sumption (Aug. 15) ; 21—St. Bartholomew (Aug. 24) ; 22—Dedi­ cation of St. Michael Archangel (Sept. 29); 25—Sts. Simon and Jude (Oct. 28) ; 26—All Saints’ (Nov. 1) ; 27—St. Andrew (Nov. 30) ; 28—Immaculate Conception (Dec. 8) ; 29—St. Thomas, Apos­ tle (Dec. 21); 30—Christmas Day; 31—St. Stephen (Dec. 26); 32—Holy Innocents (Dec. 28); 33—St. Sylvester (Dec. 31); 34—Patron of country (in the United States this is the Immaculate Conception); 35—Patron of the place (in this country we have no patrons of cities, towns, etc.). Cfr. c. 466, §1. If a pastor is at the same time administrator of one or more other parishes, he need apply only one Mass for the people on the above days (c. 466, §2). If some impediment hinders the pastor from applying Mass on the day assigned, e. g., he has a funeral, he may have it applied through another priest, e. g., the assistant, giving the lattci, of course, the usual low Mass stipend, or postponing the obligation until the next free day. The pastor should apply the Mass personally, when at all possible. However, since the obligation is also local, i. e., the Mass should be said if possible in the parish church (c. 466, §4), should the pastor be absent, he may apply the Mass himself away from the parish church, or have it said in the parish church by another priest. The personal and the local obligations are of equal force, and neither prevails over the other (c. 466, §5). The Missa pro populo need not be the high Mass, nor the parish Mass. The day assigned for the Missa pro populo is determined ad urgendam, not ad finiendam obligationem. Therefore, Masses not said on the fixed days must still be supplied. The Mass for the people is due the congregation ex justitia. If, therefore, the pastor happens to binate on these days, he may not 276 PASTORS accept a stipend for the second Mass, saving an Apostolic induit. Much less may he accept a stipend for the Missa pro populo. But some compensation may be accepted for the second Mass ex titulo extriuseco, namely, by reason of labor and inconvenience, as where the pastor would say a second Mass in another parish, to supply for the pastor of that place. Parish books—Every pastor must keep five parish books: 1) the baptismal register; 2) the confirmation register; 3) the marriage register; 4) the register of deaths; 5) the census book (c. 470, §1). In addition, he must have an account book containing the record of income and expenditures, as we have already remarked. The bap­ tismal, confirmation, marriage, and death registers can be separate or composite volumes. In the baptismal register must be entered the names of all persons baptized in his parish, whether these arc his subjects or not. In the latter case he must send notice of the baptism to the proper pastor also (c. 778). The baptismal register must have a wide margin so that after each name there may be space to record: 1) confirmation; 2) mar­ riage; 3) reception of subdeaconship; 4) the profession of solemn vows (c. 470, §2). This is an obligation imposed by the common law, and the reason in the case of marriage, subdeaconship and solemn vows is that these constitute diriment impediments to marriage, so that an extract of the baptismal register (a baptismal certificate), which must be furnished every priest who assists at a marriage, will testify whether or not the party is free to marry. To this end notice of every contracted marriage, of subdeaconship and solemn vows must be transmitted to the party’s parish of baptism, by the respon­ sible persons, whether priest (c. 1103, §2), bishop (1011), or re­ ligious superior (c. 1011, 576, §2). Every pastor should have his own parish archives in which to keep the above registers and important episcopal or chancery docu­ ments and papers worthy of retention. The archives, like the parish books, are subject to inspection at the time of the visitation (c. 470, §4). Finally, every pastor must have a parish seal for the purpose of authenticating copies taken from the parish registers, e. g., baptismal, marriage certificates, etc. When issuing a document intended to be authentic, the date and place of issuance must be added, and the parish seal affixed, otherwise the document is not authentic (c. 470, §4) PASTORS 277 §8. Erection, Division, etc., of Parishes The Code docs not discuss this subject when speaking of pastors, but the reader must consult Book III of the Code under the title of benefices. A parish being a benefice, whatever the Code rules concerning the erection, union, division, etc. of benefices will apply equally to the erection, etc. of parishes (cfr. p. 549 ft). ART. II. Parochial Vicars A parochial vicar is a priest who substitutes for the pastor in the care of souls. Thus the vicar, like the pastor, assists the bishop in the sacred ministry. Some vicars have ordinary jurisdiction with all the rights and duties of real pastors, being rated in law as pastors in everything saving the name. But other vicars have only delegated jurisdiction. There are five classes of parochial vicars: 1) actual vicars; 2) the vicar administrator; 3) the vicar substitute; 4) the vicar adjutant; 5) the vicar cooperator, called in our country the assistant, assistant priest, or assistant pastor. §1. The Actual Vicar (c.471) The actual vicar is a priest chosen by a moral person where a parish is united to the moral person, so that the vicar may exercise the actual care of souls while the moral person retains the habitual care of souls. Religious parishes are cases in illustration. Here the parish is united to the house, abbey, province, etc., and the latter are the habitual pastors, while the priest we call pastor is really the vicar of the foregoing, though the distinction is more academic than practical. As to his appointment, he is presented by the moral person but receives canonical institution from the bishop. Thus a religious superior designated by the constitutions, e. g., the provincial, presents a priest of his province to the bishop, and the bishop, if he approves of the choice, thereby confers the parish on the priest. As to removal, the actual vicar, if a secular priest, e.g., the vicar of the cathedral chapter, cannot be removed by the moral person who presented him. But he can be removed by the bishop in the manner of secular pastors. But religious actual vicars, or 278 PAROCHIAL VICARS simply religious pastors, arc removable ad nutum, i. e., at the good pleasure of either the bishop or the religious superior, as already explained above. Actual vicars, whether of the secular or religious clergy, may be called vicars or they may be called pastors, they being in fact the actual pastors, and the moral person the habitual pastor. They are not called rectors. As to their jurisdiction, actual vicars have all the rights and duties of pastors, including the obligation of the Missa pro populo. Their jurisdiction is ordinary, and they may delegate the same per modum habitus or ad actum, as was said when we explained the rules governing the exercise of jurisdiction. §2. The Vicar Administrator (c. 472-473) The administrator (vicarius oeconomus) is a priest who exer­ cises the care of souls provisionally during the vacancy of a parish, e. g., between the time of a pastor’s death and the appointment of a new pastor. The administrator has ordinary jurisdiction, having all the rights and duties of a pastor in virtue of his office, including the obligation of applying Mass for the people. Hence, e. g., he may not only assist at marriages himself, but he may delegate another priest to assist at specified marriages, or if this priest is his vicarius cooperator (cfr. §5 below), he may authorize him to assist at all marriages which may come up. (Pont. Comm. May 20, 1923; Acta XVI, 114). Until an administrator is appointed, the first assistant, immedi­ ately upon the vacancy of the parish, receives from the law itself full parochial rights; and if there is no assistant, these rights in the vacant parish are given to the nearest neighboring pastor. But upon the vacancy of a religious parish it is the local superior, not the first assistant, who receives full parochial rights from the Code; and if the pastor was the superior, it will be the priest who by the law of the constitutions succeeds the superior in the government of the house. In practise these points need not create difficulties, for rhe bishop must be informed at once in case of a vacancy through death, and he will either confirm the arrangements described, or change them, which he is authorized to do. For these arrangements hold by law only until they arc confirmed or modified by the local Ordinary. PAROCHIAL VICARS $3. 279 The Vicar Substitute (c. 474) The vicar substitute is a priest who governs a parish during the absence of the pastor, or pending the recourse to the Holy See taken by a pastor against the bishop’s decree of removal. Hence, the parish is not vacant, otherwise an administrator or a new pastor would be appointed. If the pastor intends to go on vacation, or otherwise absent himself for longer than a week, he must first obtain written permission of the local Ordinary. When requesting this permission the pastor should take care to mention the name of the priest whom he intends should supply for him. If the Ordinary approves of the choice, the priest ipso facto becomes a vicar substitute. This we already saw. The vicar substitute has all the rights and duties of a pastor, saving matters which the local Ordinary or the pastor may have reserved. Therefore, if not reserved he may assist at all marriages that may come up, and he may authorize another priest to take the marriages in his stead, if this other priest is a vicarius cooperator, but if he is not, he may delegate him only for specified marriages. A pastor who absents himself for less than a week need not obtain previous permission of the local Ordinary. But he must never­ theless provide for his people, cpecially for cases of emergency. If he has an assistant, there is no difficulty. If he arranges with a neighboring pastor, the latter is not a substitute and can assist only at specified marriages, but not at any marriages which may come up, since he is not a vicarious cooperator. At the most he may, in an unexpected marriage case, call the parties to his parish and there assist at their marriage. §4. The Vicar Adjutant (c. 475) The vicar adjutant (vicarius adjutor) is a priest given to a pastor who is incapable of discharging his duties properly because of some permanent disability, c. g., old age, mental weakness, blindness, etc. Ordinarily such pastors arc not removed from office unless absolutely necessary, since affliction is not to be added to affliction. The local Ordinary appoints the vicar, adjutant ; in the case of a religious parish the superior presents him. Saving the obligation of the Missa pro populo, which the pastor must fulfill personally or through another, offering the latter a stipend, the vicar adjutant has all the rights and duties of a pastor, 280 PAROCHIAL VICARS unless the Ordinary makes reservations in the letters of appointment. In that supposition the priest retains the name of adjutant, but in reality his powers are delegated, like those of an assistant (vicarius cooperator.) Usually, if the pastor is sui compos, the adjutant has only restricted and delegated powers, and remains under the authority and vigilance of the pastor. If the adjutant has all authority, his jurisdiction is ordinary. If ordinary, he may delegate a non-assistant to take this or that specified marriage, and he may delegate a vicarius cooperator to assist at indeterminate marriages. If the adjutant has no full powers, his rights with respect to assisting at marriage, and sub delegating others in his place, are identical with those of the vicarius cooperator. (Pont. Comm. May 30, 1923; Acta XVI, 114). §5. The Vicarius Cooperator (c. 476) With us this is the assistant. Technically, the vicarius coopera­ tor is a priest given to a pastor who cannot govern the parish alone because of the large number of souls, or for reasons other than those calling for a vicar adjutant as described above, e.g., vast extent of parish, differences of language and nationalities, etc. Usually assistants arc appointed for the entire parish. They may be assigned to a certain section, however, with its own church (chapel) and residence for the priest, but in such cases the priest is not a pastor ; he remains a vicar, i. e., an assistant. As to their appointment, secular assistants are appointed by the local Ordinary, after consulting with the pastor. Religious assistants arc presented by the superior after consulting with the pastor, and the local Ordinary grants the approbation, or canonical mission. In some countries it has been the custom of appointing assistants with­ out consulting the pastor. Such custom can no longer prevail against the Code. Even though centenary, it should be removed if this can be done without inconvenience. (S. C. Council, Nov. 14, 1920; Acta XIII, p. 43). As to their removal, secular assistants are removable ad nutum by the bishop, the vicar-capitular (diocesan administrator), and by the vicar-general with special mandate. Religious assistants can be removed in the same manner as religious pastors, i. e., ad nutum, by either the local Ordinary or the superior, the one advising the other beforehand, and neither being bound to state the reasons to the other. As to their powers, assistants supply for the pastor in the general government of the parish, and this in virtue of their office. But their PAROCHIAL VICARS 281 faculties, being delegated, must be learned from the bishop’s letters of appointment, from the diocesan statutes and from the pastor’s commission. That the assistant’s powers arc all delegated, and that he does not enjoy ordinary jurisdiction, seems to be the more generally accepted view. Consequently, unless expressly authorized, he may not assist at marriages. But he may be given not onlyparticular, but general delegation, to assist at marriages, and in the latter case he may subdclegate his powers for specific marriages (Pont. Comm. May 30, 1923; Acta XVI, 114). If the diocesan statutes contain a provision to the effect that assistants may confer all the sacraments, this does not extend to marriage, unless custom so interprets the statutes. (H. O., Sept. 27, 1898; J. 5. 5. XXXI, 317). ART. III. Chaplains (c. 479, §2) A chaplain is a priest attached to some institution with a public or semi-public oratory for the purpose of exercising the sacred ministry in respect to its inmates. Hence, chaplains assist the bishop in the care of souls with respect to these institutions in the diocese. As there are various kinds of institutions, so there are many’ varieties of chaplains, e. g., chaplains of convents, hospitals, prisons, orphanages, etc. What rights and duties are enjoyed by chaplains must be learned from the Ordinary's letters of appointment, or from the decree of exemption in the event, and to the extent, that the bishop has exempted a particular institution from the jurisdiction of the local pastor. Usually, chaplains may say Mass, distribute communion, hear confessions, except in the case of religious women, and preach. In addition, and by virtue of common law, the chaplain of all lay religions, other than those of nuns, may administer Holy Viaticum and Extreme Unction. And they may, if so empowered, conduct the funeral services of lay male religious (c. 514, §3). In monasteries of nuns with solemn vows the ordinary confessor, or his substitute, takes Holy Viaticum to the dying and administers Extreme Unction (c.514, §2) ; but the chaplain conducts the funeral service (c. 1230, §5). For communities of religious women with simple vows, the chaplain conducts the funeral service if the institution is exempt from pastoral jurisdiction (c. 1230, §5). 282 CHAPLAINS Chaplains of Catholic hospitals usually receive the right to administer Holy Viaticum and Extreme Unction, and to this extent the hospital will be exempt from the pastor. Hence, the proper pastors of the inmates would not be allowed to go to the hospital and administer these sacraments. The same is true if the chaplain is authorized to administer solemn baptism and assist at marriages, which is seldom verified. But in urgent cases chaplains, like any other priests, may administer private baptism and even assist at marriage. The record is kept in the local parish books if the institution is not exempt from the local pastor. ON RELIGIOUS Ecclesiastical persons arc cither clerics, religious or laymen. Having considered clerics in Part 1, we pass on to study the law on religious. 'I'he division of ecclesiastical persons into clerics, religious and laymen is not an adequate one in a certain sense, because religious are not persons distinct from clerics and laymen. In fact, religious are either clerics or laymen. However, a special treatise on religious as such is necessary because of the peculiar rights, privileges and duties which the law attaches to the religious state. In other words, clerics insofar as they are also religious, have additional rights and duties distinct from those attaching to the clerical state alone, while laymen insofar as they are religious have rights and duties over and above those common to ordinary lay Catholics. We shall distribute Part II into 8 chapters as follows: 1) On the religious state in general; 2) On the erection and suppression of religions, provinces and houses; 3) On government in religions; 4) On admission to a religion; 5) On religious profession and its effects; 6) On the obligations and privileges of religious; 7) On departure from a religion; 8) On societies of men or women who lead a common life without vows. 283 Chapter I THE RELIGIOUS STATE IN GENERAL In this chapter we shall discuss: 1) the nature of the religious state; 2) the history of the religious state; 3) terminology peculiar to the law on religious; 4) precedence among religious. ART. 1. Nature of the Religious State In general the word state denotes a permanent unchanging mode of life. In this sense we may speak of the clerical state, the conjugal state, etc. In this general sense, then, the religious state would be simply the ordinary every day mode of life characteristic of conscientious, God-fearing people. But in canon law religious state has a technical meaning. Can­ on 487 defines it to be: a stable mode of life led by those persons who, in addition to keeping the commandments, strive after evangeli­ cal perfection by the observance of the vows of poverty, chastity and obedience. A society of such persons approved by competent ecclesi­ astical authority is called a religion, while the members themselves are called religious. It remains to explain our definition more at length. First, the religious state is one of evangelical perfection. Per­ fection is the realization of the end for which a thing exists and for which it has been created, such, e.g., as seeing is to the eye and hearing is to the car. Man’s ultimate end is possession of God through union with Him. It follows that the closer man comes to this possession or union, the more perfect will he be. Ordinary per­ fection is attained through the observance of the commandments. Extraordinary perfection consisting in a still closer union with God is attained through the observance of certain superrogatory works called counsels, which being found in the Gospels (evangelia) are 284 RELIGIOUS STATE IN GENERAL 2S5 called evangelical counsels. Although various counsels are con­ tained in the Gospels, there are three which when taken collectively excel all others as a means to higher perfection since they are ade­ quate of themselves to remove the chief obstacles to eternal salva­ tion, namely: voluntary poverty which is opposed to the concupiscence of the eyes, chastity which subdues the concupiscence of the flesh, and obedience which safeguards against the pride of life. These coun­ sels have Christ Himself for their author: // thou will be perfect, go sell what thou hast, and give to the poor, and thou shalt have treas­ ures in heaven; and come follow Me (Mt. XIX, 21 ) ; and : Everyone that hath left house or brethren, or sisters, or father or mother, or wife or children, or lands for my name’s sake, shall receive an hun­ dredfold and shall possess life everlasting- (Mt. XIX, 29). Where­ as in the above texts we find voluntary poverty counseled, obedience is'advised in this text: If any man will come after Me let him deny himself, and take up his cross daily and follow Me (Lk. IX, 23). Voluntary chastity is counseled in Mt. XIX, 12: And there are eunuchs who have made themselves eunuchs for the kingdom of God. If those who observe merely the commandments deserve to be called religious, those who in addition keep the counsels just described have a still greater right to that title. Secondly, the counsels must be confirmed by vows if we are to have the religious state. In the clerical and conjugal life stability is secured by law. In matters of mere counsel, stability can be secured in no way other than by vows. Here there is no authority command­ ing or imposing an obligation. Nor would a voluntary promise of poverty, chastity and obedience made to man suflice, since the latter, e.g., the bishop, who accepts the promise could of his own authority release the individual of his obligations. However, even the slight­ est degree of stability is compatible with the religious state, that, e.g., which is implied in temporary vows, provided that both he who takes temporary vows as well as the superior intend that they be renewed upon their expiration. From all this it follows that vows are essential to the religious state by the will of Christ. Thirdly and fourthly, the religious state, as now understood, demands common life in an approved religion. This is in virtue of ecclesiastical law only. In the beginning, as we shall see, the ere­ mitical life no less than the cenobitic life was regarded as one of evangelical perfection. As to the explicit ecclesiastical approval for religious organizations this was not required before the 13th century. It should be noted, finally, that the religious state is a status perfectionis acquirendae not a status perfectionis acquisitae. One 286 RELIGIOUS STATE IN GENERAL docs not become perfect in the spiritual sense immediately when he pronounces vows in a religion ; this is but the beginning of the effort. ART. II. History of the Religious State In respect to its fundamentals, i.c., the three counsels and vows, the religious state has Christ for its author as was said. As to its accidentals, namely, common life, ecclesiastical approval for this or that institution, the rules and constitutions of the different reli­ gions, the religious state is of human origin. The history of the reli­ gious state, then, is simply the history of these accidental forms. Ascetics and virgins—In the first two centuries of the Church’s history we find the first manifestations of the religious state exhibited by the ascetics and virgins. These were Christians who, although living in the world, kept themselves recollected in the midst of dissipation and pure in the midst of corruption. Whether they ob­ served the three evangelical counsels described, and this in virtue of vows, we do not know. It seems, however, that their status was publicly recognized by the Church for they assumed a distinct garb, made solemn spiritual holocausts of themselves in the hands of the bishop, and were accorded places of honor in church gatherings. Hermits and cenobites—The religious state becomes more pro­ nounced in the third and fourth century. To escape the persecutions of those times many Christians fled into the deserts of Palestine and Egypt where they could serve God in seclusion free from the dis­ tractions of the world. They can be called anchorites in the sense that they retired from the world. But some anchorites led the life of hermits, i.e., the eremitical life, alone in some mountains or sylvan solitude, and of these St. Paul who died in 341, and St. Anthony who died in 356, are notable examples. Other anchorites, on the other hand, were attracted by the saintly life of some hermit, put themselves under his spiritual direction, followed his rule of life, and began life under a common roof. 'These were called ceno­ bites and St. Pachomius who died in 346 is considered the father of the cenobitic life. Monastic Orders—The cenobitic or common life completely replaced the eremitical life within a very short time. The cenobitic system when applied to the religious state came to be called monasti­ cism. Those who professed this form of religious life were called RELIGIOUS STATE IN GENERAL 287 monks, and their houses were known as monasteries. These words are derived from the Greek monos which means both alone and one, and they may have originally signified either the life led alone and apart from the world, or the life under one rule. In the Eastern Church monasticism made great strides under the influence of the religious rule laid down by St. Basil, Bishop of Caesa ria (d. 379). He is known ns the father of Eastern monasticism and the lawgiver of the Oriental monks. The patriarch of the Western monks was St. Benedict (480543) who founded his famous abbey at Monte Casino in Southern Italy in 529. It was here that he composed his rule which until the 12th century was observed by religious in the entire Western Church, for the Benedictine rule was carried to all parts of Europe by the missionary monks who also took care to establish monasteries wherever the Catholic faith found root. St. Benedict introduced the vow of stability which bound the monk to remain in the monastery in which he made his profession, and thus put an end to capricious changes from house to house. Ac­ cording to the Benedictine rule each monastery was to remain entirely independent of all others. But in course of time wc find several monasteries uniting to form a monastic congregation. The first monastic congregation was that of Cluny. Its origin can be traced to the influence which the abbc}· of Cluny by reason of the superiority of its religious observance had come in the 10th century to exercise over neighboring monasteries which gradually placed themselves un­ der the spiritual direction of the abbots of Cluny and even acknow­ ledged in them a legal headship. Although this was a departure from the Benedictine ideal the amalgamation had its advantages, and soon other monasteries united to form congregations, usually under the headship of some abbey renowned for its religious reform. The Lateran Council of 1215 decreed that the monasteries of each country were to unite themselves into as many congregations, al­ though the decree was not universally observed until the time of the Council of Trent, which council threatened loss of exemption for those monasteries which refused compliance. At the present day the so-called Black Benedictines number 14 Congregations, and since 1893 they have been combined into a federation with an abbot-primate at the head. His powers do not resemble those of a superior general in other religious Orders, hut his office is mostly one of supervision and counsel to the end that a closer union and a more brotherly spirit may continue among the several Black Benedictine Congregations. From the Benedictine tree have sprung the following inde­ 288 RELIGIOUS STATE IN GENERAL pendent monastic Orders: the Camaldolcse (1012); the Vallombrosians (1015); the Cistercians (1098); the Sylvestrincs (1231); the Olivetans (1313); the Trappists (1664) and the λ lech i ta lists (1701). Although these without exception follow the original rule of St. Benedict, they are not classed as Benedictines being so many Orders distinct from, and independent of, the Federated Black Benedictines. Canons Regular—The first noteworthy departure from the Benedictine form of monastic life is found in the 12th century in the case of canons regular. During this century in many places of Europe secular canons of cathedral and collegiate churches in­ troduced community life among themselves, and bound themselves by vow to observe the rule of life laid down by St. Augustine cen­ turies previous. Such canons came to be called canons regular to distinguish them from secular canons. But the ideal of commun­ ity life soon waned among the canons. The dnnuario Pontificio lists six Orders of Canons Regular still in existence: 1) the Canons Regular of the Lateran (f. 11th century); 2) the Hospitalitarian Congregation of the Great St. Bernard (Pass in the Alps) who were founded in the 11th century likewise; 3) the Swiss Congre­ gation of St. Maurice of Agaune (f. 1128) ; 4) the Prcmonstratensian Congregation (f. 1120); 5) the Croisier Canons (f. 1211); 6) the Croisiers of the Red Star (f. 1237). Mendicant Orders—These arose in the 13th century as a protest against the luxurious lives of both secular and regular clergy. For although the religious Orders had hitherto imposed poverty on its individual members, the monastery as such could possess and own temporal goods, and it was on this latter score that luxury had crept in. As a result the new mendicant Orders renounced property rights even for the communit}', and they con­ tented themselves with living on daily alms; hence, they were called mendicants (from mendicare to beg). The four original mendicant Orders are: 1) the Dominicans, or the Order of Friars Preacher, founded by St. Dominic and ap­ proved by the R. Pontiff in 1216; 2) the Franciscans, or the Order of Friars Minor, founded by St. Francis of Assisi and approved definitely in 1223; 3) the Carmelites approved in 1226; 4) the Augustinians, or the Hermits of St. Augustine, approved in 1255. Other mendicant Orders appeared later: the Servîtes, the Trinitari­ ans, the Mcrcidarians, the Minims of St. Francis, the Order of St. John of God, the Penitents of Jesus of Nazareth (Scalzetti Fathers), and the Teutonic Knights. Cfr. dnnuario Pontificio. RELIGIOUS STATE IN GENERAL 289 It must he noted that the mendicant Orders, as well as clerics regular and most modern Congregations, have a centralized form of government. Their houses are not independent of one another as is the case with the monastic Orders, hut several houses are subject to a common superior usually called the provincial, and the provinces in turn are under a common superior usually called the general. Clerics Regular—The various Orders of clerics regular arose in the 16th and 17th century. Their members are primarily priests who devote themselves to the sacred ministry while leading a com­ mon life under vows. Defections from the faith among both clergy and laity which followed the so-called Protestant Reformation explain their origin, namely, to supply for the depleted ranks. Clerics regular differ from monks in that they do not live a life of contemplation segregated from the world. They differ from canons regular in that they have no cathedral or collegiate chapters being occupied more with the ministry than with choir service. They differ from mendicants in that while the latter like the clerics regular devote themselves to the sacred ministry and the cultiva­ tion of learning, yet the priestly character does not overshadow their religious ideal; whereas the clerics regular arc priests primarily, and religious only secondarily, so to say, which is manifested even in their external mode of life, for their dress approaches more that of secular priests than that of the ancient religious Orders. In the Annuario Pontificio wc find the following listed as clerics regular: the Theatines; the Barnabitcs; the Jesuits; the Somaschi; the Regular Clerics Ministering to the Sick; the Minor Clerics Regular; the Clerics Regular of the Mother of God; the Piarists, or Clerics Regular of the Mother of God of the Pious Schools. Second and Third Orders—Practically all the mendicant Orders and the Clerics Regular saving the Jesuits, founded monas­ teries for religious women. These monasteries constituted the second Order, the first Order in point of time being the Order of regulars to whom the nuns were subject. But some nuns do not belong to a second Order since they arose independently of Regulars, e. g., the Ursulines and the Visitation Nuns. The nuns, like the regulars, professed solemn vows. They were held, however, to a stricter form of enclosure than the regulars since they were forbidden to leave their monasteries, not so the regulars. Hence, the nuns could not be organized into a centralized Order as was the case with the Regulars for the simple reason that 290 RELIGIOUS STATE IN GENERAL they could not be visited by a Mother Provincial or a Mother General, superiors as well as subjects being bound to the enclosure. The second Orders of necessity followed a rule distinct from that of the first Orders. Each monastery of nuns was sui juris, i. e., independent of every other monastery of the same Order. They were subject immediately to the prelates of the first Order, and enjoyed exemption from the jurisdiction of the local Ordinary no less than the Regulars. But the political and social changes within the last two centuries made it imperative to withdraw nuns from the juris­ diction of the prelates of the first Order, and to subject them to the jurisdiction of the local Ordinaries, e. g., in many European countries religious first Orders lost houses through the confiscation of civil rulers. According to the Catholic Encyclopedia (llenedic· tines) the convents of Benedictine nuns subject to Benedictine abbeys recently numbered nine, whereas 253 convents were subject to the local Ordinaries. Those religious Orders which recognize an Order of nuns as their second Order usually have a third Order. St. Francis of Assisi gave a rule of life to those who wished to follow his ideals while remaining in the world and without vows. Similar rules were formulated by the founders of other I Orders. Very early, however, some of these tertiaries banded together under a common roof and pronounced vows. Some went so far as to take solemn vows, a vestige of which practise we sec today in a religious organization known as HI Order Regular of St. Francis. But most tertiaries who led the common life took only simple vows, and thus prepared the way for religious Congregations of modern times as distinct from the older religious Orders. Third Orders of men or women who live a common life with vows arc called third Orders regular to distinguish them from third Orders secular whose members live in the world without vows. With the exception of the Third Order Regular of St. Francis whose members take solemn vows, all other III Orders regular are in reality Congregations for their members pronounce only simple vows. Religious Congregations—Until comparatively recent times the vows pronounced by members of religious organizations were solemn vows without exception, i. e., vows which by the law of the Church had the effect of invalidating acts placed in contravention of the vows. The year 1752, however, saw the founding and approval of the last religious Order, namely the Penitents of Jesus of Naza­ reth, or the Scalzetti Fathers. Thereafter only religious Congrega­ tions received approbation, understanding by a Congregation as opposed to an Order, a religious organization in which only simple RELIGIOUS STATE IN GENERAL 291 vows arc taken. Furthermore, by a simple vow as contrasted with a solemn vow wc understand a vow which merely prohibits under sin acts done in contravention of the vows, but leaves the validity of such acts intact. Several causes contributed to the rise of the Congregations. First, already as early as 1215, Innocent III in the II Lateran Council had strictly forbidden that new religious Orders be founded without approval of the Holy See. The Pope was persuaded that religious Orders had become sufficiently diversified, not to say multi­ plied, and moreover, some were leaning to superstitious practises and heretical tendencies. But this ban was not construed as extend­ ing to societies of men or women who were satisfied with simple vows. In fact, Leo X in the Const. Inter cetera (Jan. 10, 1521) permitted tertiaries to lead a common life with simple vows, but without regarding such societies as religions. But shortly thereafter St. Ignatius obtained papal approval of his Constitutions which ad­ mitted the scholastics to simple vows, only the professed members having solemn vows. From this fact, incidentally, Gregory XIII later proved that the religious state could exist without solemn vows. As to the tertiary Congregations which for centuries were the only religious Congregations, the services which their members rendered to the sick, the poor, the ignorant, etc. proved so beneficial that by the 18th century we find the Holy See permitting the founding of non-tertiary Congregations as well. It should be noted that female Congregations were permitted to engage in active life outside of their convents, not being held to the law of papal enclosure as were the nuns of II Orders with solemn vows. Finally, the adverse civil laws since the French Revolution cither outlawing regular Orders on principles of so-called public policy (solemn vows being con­ strued as incompatible with the natural rights of citizens which the State was bound to protect), or authorizing the confiscation of ecclesiastical property including the monasteries of nuns thus mak­ ing a retired and cloistered life impossible in their case, confirmed the policv of the Holy See in approving none but religious Congre­ gations since the 19th century. Although Congregations of tertiaries were founded by bishops already since the 16th century, it was not until the Holy See began giving approval also to non-tertiary Congregations that the latter too were founded by bishops. The /fnnuario Pontificio recently enumerated 84 male Congre­ gations of papal law, although some, as we shall sec, can be called Congregations only in an imperfect sense, their members not taking the three substantial vows. Among these older Congregations arc: 292 RELIGIOUS STATE IN GENERAL the Brothers of the Christian Schools (f. 1680) ; the Passionists (f. 1720) and the Redemptorists (f. 1732). Of the female Congre­ gations of papal law some 450 were recently listed in the .Innuario Pontificio. Institutions without vows—These societies cannot be called religions because although their members lead a common life, they either take no vows, or not all the three substantial vows, or they take the three vows but on condition that they be renewed at the good pleasure of the members. Examples arc: the Oratorians of St. Philip Neri ,(f. 1575), and the Sulpicians (f. 1642), besides numerous modern institutes both of men and women. ART. IIL Technical Terms Defined (c. 488) 'l’hc various historical forms of the religious state as outlined in the preceding article have given rise to a number of technical terms which, due to the variant and confusing sense in which they were employed by pre-Code writers, have now received an official and fixed meaning by the Code in c. 488. These terms ought to be well mastered from the outset since they will recur from time to time in the treatise on religious. Religion—A religion is a society approved by the competent ecclesiastical superior, the members of which take public vows, either perpetual or temporary but subject to renewal upon expira­ tion, and thus tend to evangelical perfection. It should be noted here that in federated monastic religions the religion is not the individual monastery but the aggregate of all the monasteries of a monastic congregation. The federation of the 14 Black Benedictine Congregations docs not constitute a separate religion. In centrally organized religions the religion is the totality of all the provinces, or where the religious organization docs not admit of provinces, the religion is the sum total of all the houses. Order and Congregation—An Order is a religion in which solemn vows arc taken ; a Congregation is a religion in which only simple vows arc taken. The aggregate of several independent monas­ teries is likewise called a Congregation, but such a Congregation is an Order. The word Congregation without further qualification means a religion in which only simple vows are pronounced. If the RELIGIOUS STATE IN GENERAL 29Î union of several independent monasteries is intended we speak of a monastic Congregation. Solemn vows and simple vows—Whether vows are solemn or simple is not determined by the solemnity of the external ceremonies accompanying profession. Λ vow is solemn if it not only prohibits contrary acts under pain of sin, but renders those acts invalid. A vow is simple which merely renders illicit those acts performed in contravention of the vow, but leaves the validity of the acts untouched. 'Thus, a religious under solemn vows cannot contract a valid marriage, nor conclude a valid contract conferring property rights in his own name, nor take a private vow or oath whose ful­ fillment would be incompatible with the observance of his rules and constitutions. On the other hand, a religious under simple vows sins if he marries, or alienates his goods without the superior’s permission, but the marriage and the alienation would be valid. Solemn vows are pronounced only in religious Orders. Exempt religion and non-exempt religion—An exempt religion is one which has been withdrawn from the jurisdiction of local Ordinaries; all other religions are non-exempt. Religions of papal law and religions of diocesan law—A religion of papal law is one which has received the approbation of the Holy See, or at least the so-called decretum laudis. A religion of diocesan law is one which has been approved by the local Ordinary but which has not yet received the decretum laudis of the Holy See. It may he noted that religions of papal law enjoy more independence with respect to the local Ordinary than do religions of diocesan law. The points of difference arc revealed by a study of the various canons on religious. Clerical religions and lay religions—A clerical religion is one the majority of whose members are priests, e. g., the Franciscans. Benedictines, Dominicans, etc. A lay religion is one which admits no priests at all, e.g., all sisterhoods, and practically all lay brother­ hoods, or only a few priests, c. g., the Order of St. John of God, most of whose members are lay brothers. Religious house—A religious house is a canonicallv established house of any religion whatsoever. Formal house and non-formal house—A formal house (domus formata) is a religious house in which at least six professed religious arc living as de familia members. If the religion is a clerical one, at least four of these members must be priests to have a formal house. All others are non-formal houses (domus non formatae). Province—A province is the subdivision of a centrally organized 294 RELIGIOUS STATE IN GENERAL religion, and consists of the union of several houses under one superior called the provincial. The aggregate of all the provinces constitutes the religion. Sometimes a province is coterminous with a nation, sometimes it extends to two or more countries, sometimes several provinces are found in the same country. Religious—A religious is a man or woman who in some ap­ proved religion, whether of papal or diocesan law, has taken public vows, whether perpetual or temporary, solemn or simple. There­ fore, novices and postulants arc not included under this term, generally speaking. Religious of simple vows—By this term are meant the professed religious of a Congregation. Regulars—By this we mean the professed religious of an Order. The term, therefore, includes even the temporarily professed re­ ligious of an Order. Sister—This term applies to all professed religious in female Congregations. Nun—By a nun (monialis) the Code understands a professed religious in a female Order. Unless the nature of the case, or the context indicates otherwise, the term also includes religious women who in certain places by a ruling of the Holy See take onty simple vows though they belong to an Order whose rule calls for solemn vows. Since the French Revolution the nuns of France and Belgium have been permitted by the Holy See to take only simple vows. The nunneries of the United States were originally founded by nuns who immigrated to this country from Europe, many of them from France and Belgium. Owing to this fact, as also to the moral impossibility of enforcing the strict papal enclosure in the case of American nuns who for the most part must engage in active service to support themselves, which was the case with the nuns of France and Belgium after the confiscation of their monasteries and temporal­ ities, the S. C. of Bishops and Regulars declared on Sept. 2, 1864 that in the U. S. the vows of nuns who had immigrated to this country were not to be considered solemn unless certain nuns had received a special Apostolic induit permitting them to take solemn vows. Such induit according to the above declaration was enjoyed only by the Visitation nuns of Georgetown, Mobile, St. Louis, Balti­ more. and the now suppressed monastery of Kaskaskia {Collectanea of Bizzarri, I cd., p. 778). Nuns who have been taking only simple vows by a special ruling of the Holy See may, if changed circumstances seem to war­ rant it, petition the R. Pontiff to allow them again to pronounce RELIGIOUS STATE IN GENERAL 29S solemn vows (S. C. Rel., June 23, 1923; Acta XV, 357). If a monastery of nuns transfers to this country from a country where they had permission to take solemn vows, the Holy See must be consulted as to whether they may be permitted to continue with solemn vows in the new establishment (S. C. Rel., Oct. 11, 1922; Acta XIV, 554). In the United States, therefore, the general presumption is that all nuns, c. g., the Poor Clares, the Carmelite nuns, the Dominican nuns of the II Order, etc., take only simple vows unless they can show a special induit from the Holy See authorizing them to take solemn vows. But even though they take only simple vows they are a religion of papal law. And whenever the Code uses the term monialis they are to be included, unless the nature of the case, or the context, indicates otherwise. This qualifying clause will often create difficulties, it is true. Thus, it is disputed by canonists whether an Apostolic induit is required in virtue of c. 497 to establish a monastery of nuns with simple vows. That these nuns are subject to the jurisdiction of the local Ordinary, on the other hand, was expressly declared by the S. C. Rel., June, 23, 1923; (Acta XV, 357). Major superiors—Under this heading come: 1) an abbot­ primate, 2) an abbot superior of a monastic Congregation; 3) a local abbot of an independent monastery; 4) the supreme moderator of a religion, often called the general; 5) the provincial; 6) the vicars of all the foregoing; e.g., the commissary general, or the commissary provincial; 7) all who exercise quasi-provincial authority; who these latter are must be learned from the constitutions of each religion. Ordinaries—Whenever the Code uses this term it intends to include besides bishops, vicars-gcneral and other local Ordinaries, also major superiors in clerical exempt religions. But the term local Ordinaries does not include major religious superiors (c. 198). Rules and Constitutions—Religions are distinguished one from another principally by their rules and constitutions. It is these which determine the scope of the religion, the nature of the vows to be taken, the mode of organization, etc. The Code lays down general laws which must be observed by all religions, and to which all rules and constitutions must conform. More particular details, e. g., the form of the habit, the moral obligation of the vows, etc. are left to the rule and constitutions in any particular case. The rule as distinct from the constitutions is the fundamental law containing the more general and stable elements, and therefore less subject to change. It is the charter given by the founder. The 296 RELIGIOUS STATE IN GENERAL constitutions are so many by-laws or prescriptions which by way of commentary on the rule have been added in course of time by the Holy Sec or the religious superiors in their chapters. All the older Orders follow one of the four great rules: 1) the rule of St. Basil which is that of the Oriental monks; 2) the rule of St. Augustine which is a compilation of various writings of the Bishop of Hippo on the religious life, and serves as the charter for the Canons Regular, the Hermits of St. Augustine (Augustinians), the Prcmonstratensians, the Dominicans, the Servîtes and the Order of St. John of God; 3) the rule of St. Benedict observed by the various monastic Orders, each Order, however, having its own constitutions; 4) the rule of St. Francis of Assisi which is common to the three families of the I Order, although each family follows its own constitutions and has its own general superior. Practically all the recent Congregations of men and women have constitutions only and no rule. This is true also of the Carmel­ ites and the Jesuits. In view of the changes introduced by the Code, the Holy See decreed that every religion of papal law had to submit to the Holy See for approval a revised text of their rules and constitutions to conform with the legislation of the Code (S. C. Rel., June 26, 1918; Acta X, 290). Moreover, all female religions of papal law, as also all societies of men or women living in common without vows had to submit their custom books, and books of common devotions to the Holy See for approval (S. C. Rel., Mar. 31, 1919; Acta XI, 239). ART. IV. Precedence Among Religious (c. 491) The following rules are based partly on juridical, partly on historical reasons: 1 ) The secular clergy' precede religious clergy and the laity ; but unless it is a lay religion the secular clergy’ do not precede religious in the churches of the latter, although cathedral and collegiate chap­ ters precede religious everywhere. 2) Religious precede the laity; 3) Clerical religions precede lay religions; 4) Canons regular precede monks; RELIGIOUS STATE IN GENERAL 297 5) Monks precede all other regulars; 6) Regulars precede religious Congregations. 7) Among religions of the same species the rules laid down in c. 106, n. 5 apply. Thus, as between Dominicans and Franciscans, both being regulars, that religion precedes which was first established in the place. Chapter II THE ERECTION AND SUPPRESSION OF RELIGIONS, PROVINCES AND HOUSES We shall consider the law: 1) as concerns religions of diocesan law and their houses; 2) as concerns religions of papal law, their provinces and houses. ART. I Religions of Diocesan Law We shall discuss: 1 ) the erection and suppression of the religions themselves; 2) the erection and suppression of their houses. §1. Erection and Suppression of the Religion Erection—A religion of diocesan law, it was said, is one founded or at least approved by the bishop, but which has not received the approval of the Holy Sec, or at least the so-called decretum laudis. We have also seen how the Holy See since the 16th century tolerated the founding of new Congregations with simple vows with­ out the need of consulting Rome in the matter. But on July 16, 1906 Pius X {Fontes III, p. 675) issued a Motu proprio “Dei providentis” in which the bishops were commanded to have recourse to the Holy See before proceeding to the establishment of new religions. This law has been substantially inserted in c. 492. It seems that religions with the same object and aims were being unnecessarily multiplied, and that certain religions by reason of their end were proving dangerous to the morals of its members, not to say a source of scandal to outsiders, e. g., in the case of religious women caring for the sick in their homes. The law just referred to enjoins upon bishops that they first 298 RELIGIONS, PROVINCES, HOUSES 299 seek permission of the Holy Sec before establishing a religion of diocesan law. At the same time they should inform the Holy See concerning: 1) the name of the founder and his motives; 2) the name or title of the new religion; 3) the form, color and material of the habit to he worn by the novices and the professed ; 4) the nature of the work to be undertaken; 5) the source of the religion’s income; 6) whether institutions persuing the same work already exist in the diocese. Since every religion of diocesan law normally entertains the hope of acquiring in time, the status of a religion of papal Jaw, and since no papal approval will be given to Congregations which do not conform to certain general norms, the bishop when seeking per­ mission to first establish a religion of diocesan law should keep those norms in mind, namely, the Holy Sec is not wont to approve as papal religions: 1) those Congregations which persue no definite scope; 2) those which propose to live solely on alms; 3) sisterhoods which intend to serve the sick in their homes, or to care for infants or maternity cases; 4) sisterhoods that conduct hospitals for both sexes, or hospices for priests, or schools for both boy and girls (mixed schools). But the Holy See is willing to consider the exigencies of times and places, and this explains its tolerance with respect to our sisterhoods in the United States who have charge of general hospitals and parochial schools (cfr. Normae of the S. C. Rcl., Mar. 6, 1921; Acta XIII, 312 /e valid and others invalid. Some also are consummated and others not. Canon 1015 lays down the terminol­ ogy· employed throughout by the Code to designate these various kinds of marriages. A matrimonium ratum is a marriage contracted between two baptised persons. In English we speak of such marriage either as a Christian marriage, or as a sacramental marriage. A matrimonium ratum et consummatum is a sacramental mar­ riage which has been consummated through natural intercourse. We may call it a sacramental consummated marriage. A matrimonium ratum et non consummatum is a sacramental marriage which has not been consummated. The distinction between a sacramental consummated and un­ consummated marriage is vital because it lies within the power of the Pope, as we shall see, to dissolve the latter but not the former marriages. Of course, non-consummation must be proved, for once a marriage is contracted, the law presumes it was consummated. A matrimonium legitimum is any valid marriage between two unbaptised persons. Very likely the term applies likewise to a valid marriage between a baptised and an unbaptised person, for these unions are not sacraments, as we shall see. 448 NATURE OF MARRIAGE A putatife marriage is an invalid marriage, but contracted in good faith by at least one of the parties, and it remains putative as long as both parties are not conscious that the marriage is invalid. The only difference between ordinary invalid marriages and putative marriages lies in the principle that due to the ignorance of one or both parties concerning the impediment which invalidated their mar­ riage, and therefore due to the absence of malice on their part, the Church regards the children born of such putative unions as le­ gitimate. Otherwise, it is only a valid marriage, whether sacramental or legitimate, that can give rise to real marital and parental rights and duties (c. 1110). It is valid marriage alone that confers the status of husband and wife, and the legitimacy of offspring. Concerning legitimacy in particular, the Code treats this ques­ tion in cc. 1114-1117. And ev.cn though civil law presumes to determine these questions even for baptised persons so that to avoid greater evils Catholics will abide by the civil law in this matter, yet the Church has her own rulings and enforces them so far as possible in the sense that the question of legitimacy in the canonical meaning may arise and find application in more than one situation, e.g., appointment to certain ecclesiastical offices, in candidates for the priesthood, etc. In canon law those children arc to be considered legitimate who are born of a valid or putative marriage, unless the parents were forbidden the use of marriage at the time of the child’s conception because the father was under sacred orders, or either parent was under solemn religious vows (c. 1114). It should be remembered that married men can receive sacred orders by Apostolic permis­ sion, and both married men and women can embrace the religious state by the same permission. In a case of doubt as to the child’s paternity, unless contrary arguments are in evidence, the father is presumed to be the man who married the child’s mother (c. 1115, §1). Contrary and evi­ dent proof is naturally present if the child is born more than a year after its real father's death. In this connection the Code rules that those children arc presumed to be legitimate who are born at least six months after the wedding day, or within ten months after the marriage has been dissolved, no matter for what cause (c. 1115, §2). Children born of an invalid marriage (excluding putative mar­ riage), arc legitimated by the subsequent marriage of the parents, provided the parents were qualified to marry if they had so wished, at any time from the child’s conception to its birth (c. 1116). If during NATURE OF MARRIAGE 449 all this time they labored under some diriment impediment, subse­ quent marriage docs not legitimate the child, but an Apostolic dispen­ sation would be necessary. Unless the law states otherwise, legitimated children arc on a legal par with legitimate children (c. 1117). §5. Marriage Enjoys the Favor of the Law This principle is stated in c. 1014, and it means that every marriage must be upheld as valid in a case of doubt until its in­ validity is proved for certain. To this principle there are two exceptions: (1) a marriage contracted by a Catholic in disregard of the canonical form, e.g., before a justice of the peace, is not presumed to be valid for it has not even the appearance of a valid marriage; (2) when the validity of the former marriage of a convert is seriously questioned and the marriage would stand in the way of the convert’s contracting a new marriage with a Catholic, and thus would render conversion difficult, the former marriage is to be presumed invalid. We shall see more about this when we speak of the Pauline Privilege. §6. Betrothals Betrothals, or marriage engagements, resemble marriage insofar as they are contracts and are concerned with marriage. However the one is merely the promise to contract marriage, and the other is the actual marriage contract so promised. In those countries where the Church’s exclusive control over Christian marriage is recognized, the State also leaves it to the Church to regulate the betrothal contract. In general the law on this matter may be summarized by saying that betrothals to be valid must be put into writing and signed by the contracting parties and also by the pastor, or by the local Ordinary, or by two witnesses (c. 1017). In the United States it is not the practice to conclude formal marriage engagements. If the parties wish to make a formal en­ gagement, it would be better if they observed the civil law on contracts, for the church court would be powerless to enforce a formal engagement save by means of censures. It suffices in prac­ tise that Catholics sign an engagement before two witnesses. If then either party recedes from the contract, he may be sued in civil court for breach of promise. However, neither the civil nor the church court will enforce even a formal engagement to the extent of compelling the culpable party to contract the marriage he promised. 4S0 NATURE OF MARRIAGE The reason for this ruling lies in public policy. It is better that the innocent party suffer a momentary hardship involved in the breaking off of the engagement by the other than enter upon a lasting union that might prove unhappy. But the civil court will award damages if any were caused ; c. g., if the girl quit her employment to prepare for the wedding; if the man bought or furnished a home, etc. As to the purely ethical or moral obligation in conscience to keep engagements, both formal and informal, the reader is referred to manuals of moral theology which also explain the reasons that justify the breaking off of an engagement. We may add that on June 2-3, 1918, the Code Comm. {Acta X, 345) declared that a contemplated marriage with a third party cannot be held up to await legal action for breach of promise by reason of a former engagement. Breach of promise suits can be heard by either the ecclesiastical or the civil court. Books of Special Reference Goldsmith, J. W., The Competence of Church and State over Marriage, C. U. Press, 1944. McDevitt, Gilbert J., Legitimacy and Legitimation, C. U. Press. 1941. Articles and Consultations Affinity among the unbaptized, HPR. 1926, Oct. 70; 1924 Jan. 394-398. Arc civil laws valid which bar marriage to vcncrially infected persons? ER. 1938 Jan. 99; Dec. 507-518; 1939 Apr. 323-334; May 445-446; July 9-30; 1940 July 27-59. Marriage with sister in infidelity, HPR. 1927, Sept. 1324-1331. Are pagans bound by impediments? HPR. 1922 Dec. 279. To which impediments arc Protestants subject? HPR. 1924 Apr. 729-731. Are State laws forbidding marriage between first cousins bind­ ing in conscience? CST IV, 12. Do informal betrothals bind in conscience? CST. II, 124; ER. 1925 Oct. 385-391 ; Nov. 432; 1926 Jan. 86; HPR. 1925 Oct. 70-74. An engagement casus, HPR. 1921 Mar. 540-543. Can alimony be demanded in conscience from an unlawful husband? HPR. 1933, May 859; 1935, Sept. 1309. Legitimatizing illegitimates, ER. 1920, Nov. 504-507. The philosophy of legitimacy, Jurist, 1943, Jan. 64-116. PRELIMINARIES TO MARRIAGE 4SI ART. Ill Preliminaries to marriage. These preliminaries may be reduced to three headings: 1) the investigation concerning the freedom of the parties to marry; 2) pre-nuptial instructions; 3) consultation with the Ordinary in cases where the law requires this. §1. Investigation Concerning Marital Freedom The better to enforce her laws, the Church requires the presence of an authorized priest at every Catholic marriage, who also must at a proper time beforehand investigate whether the parties are free from canonical impediments (c. 1019, SI). This investigation will differ according to whether a marriage is being contracted in danger of death or not. In danger of death, if time does not permit a more thorough investigation, it suffices that the parties take an oath that they are baptized and are free from impediments (c. 1019, §2). Most cases of this kind arc where a Catholic has been living in only a civil law union, and has put off having the marriage blessed by the Church either through shame, indifference, or some other cause. Any priest may marry a Catholic in danger of death, and dispense from nearly all impediments of ecclesiastical law, as we shall see. Sometimes, however, the impediment is one of divine law, or at least its presence is probable, as where the party contracted a civil marriage after having obtained a civil divorce from the bonds of a former valid marriage, ami the former spouse is still alive. Here the priest can do nothing except to absolve the person in danger of death on the promise that if he recovers he will separate from his unlawful consort. And if it is not certain whether the other is still alive, the priest will again abstain from validating the present union, but will absolve the penitent on condition that if he recovers he will submit his marriage to the church authorities for examination. Outside of danger of death, i. e., in ordinary cases, the sworn statement of the intended spouses does not suffice to establish their freedom. A more involved procedure is called for, comprising: 1) the interrogation of the spouses; 2) the gathering of necessary documents; 3) the publication of the banns. 452 PRELIMINARIES TO MARRIAGE A. Interrogation of the Parties (c. 1020) This is usually gone through when the couple come to the parish house and announce their intention to get married, to arrange for the date, etc. The chief purpose of the interrogations is nat­ urally to discover whether the parties are free from canonical impediments, to be discussed later in greater detail. In questioning the parties the pastor, or his delegate, will employ forms or questionnaires authorized by the local Ordinary (chancery). These forms will be based mainly on those appended to the Instruction of the S. C. Sacr. of June 29, 1941 (/Icta, XXXIII, 297 $q. The first question is logically the one concerning their residence, unless the parties arc well known to the priest as his parishioners. For if they arc not his subjects the priest will have to refer them to their proper pastor, or obtain permission of the proper pastor to marry them. Thereafter, he may proceed to interrogate them, as just said. B. Documents Besides interrogating the parties the priest must personally or through them obtain certain documents, the better to establish their freedom. The most important document is the baptismal certificate. This not only proves baptism and that the parties are subject to canonical regulations, but it also indicates the presence or absence of certain marriage impediments, namely: major orders, the solemn vow of chastity taken in a religion, and the impediment of the bond. These three facts must be recorded on the margin of the baptismal register where the name of the baptized person appears whom they concern. And the priest when investigating his own baptismal register, or drafting a certificate for another pastor, will be.careful to mark or record any such marginal notes. Incidentally, the baptismal certificate, or register, can also throw light on other possible impediments: disparity of cult, con­ sanguinity, affinity, spiritual relationship, and nonage. If one party claims to be unbaptized, a dispensation must be obtained from the impediment of disparity of cult, and in that case the baptisriial certificate is required of the Catholic party only. But if one claims to have been baptized in a non-Catholic sect so that a dispensation is necessary from the impediment of mixed religion, canon 1021, §1 would require the certificate even of him. PRELIMINARIES TO MARRIAGE +53 But in practise, at least in the United States, there seems to be little point in stressing this law. Often the non-Catholic baptismal certificate is hard to secure. But apart from that consideration since in cases of this kind a dispensation is usually granted from disparity of cult ad cautelam even when the Protestant baptismal certificate is at hand, the certificate seems to serve no purpose. The law is practical in those Catholic countries where the bishops do not have faculties to dispense from disparity of cult, but from mixed religion at the most. Then the Protestant baptismal certificate will prove that no disparity of cult is present but only mixed religion. However, each priest must follow the practise of his local curia on this point. In addition to the baptismal certificate, a widow or widower must produce a certificate of the former spouse’s death, unless the record is in the present parish books. Other documents, required in virtue mostly of diocesan 'law, are affidavits from parents, close relatives or other competent persons if the intended spouses are minor children, or cannot produce their baptismal certificate, or have lived elsewhere for more than six months after attaining puberty. But the Ordinary may permit in this last case that the party concerned take an oath to his freedom (c. 1023, §2; Code Comm., Acta, 1918, 345). In the case of a divorced person whose former spouse is still alive, the priest cannot go ahead with the investigation until the diocesan court or chancery issues a declaration of freedom, which may take from a few weeks to a year or more (cfr. Bk. IV of this manual). C. Publication of the Banns The further to insure the validity of a contemplated marriage the law requires that the marriage be publicly announced in the parish church on three successive Sundays or holydays of obligation (c. 1022, 1024). The local Ordinary may permit that in place of these oral banns, the names of the parties be affixed to the church doors to be kept there for the space of eight days (c. 1025). That the banns may serve their purpose, c. 1027 imposes upon the faithful the duty of notifying the pastor of any impediments which they know to exist between the prospective spouses. The banns must be announced by the proper pastor, i. e., the pastor in whose parish the parties have a domicile or quasi-domicile. And if the parties belong to different parishes, the banns must be published in both parishes (c. 1023). Since the Church is opposed in principle to marriages between 454 PRELIMINARIES TO MARRIAGE Catholic» and non-Catholics, the Code forbids that the banns of such marriages be announced lest the faithful take scandal and be­ come in time lethargic to her prohibitions (c. 1026). For a just cause the local Ordinary may dispense from the banns in particular cases. He may dispense from their publication both in his own diocese and in any other diocese where they would have had to be announced. Competent to dispense is any proper Ordinary of the parties provided the marriage takes place in the diocese of the dispensing Ordinary. However, if the marriage takes place outside of the dioceses of all the proper Ordinaries, then any one of the proper Ordinaries can dispense (c. 1028). Among the reasons which justify a dispensation from the banns may be listed: the fact that the parties arc already considered mar­ ried and desire now to validate their union (validatio matrimonii) : or the woman is pregnant (praegnantia mulieris) ; or some bann was overlooked and time is urgent (hannum praetermissum et tempus urget); or unexpected business, military and other reasons ne­ cessitate a hurried departure and wedding; or the parties simply desire a quiet wedding and the pastor is well enough acquainted with them to know they have no impediments (cfr. Cappello, De Sacramentis, III, n. 168). If the marriage is postponed for six or more months following the publication of the banns, the Ordinary may require their repe­ tition or not, as seems best to him (c. 1030, §2). The pastor should not proceed with the publication of the banns if an impediment is present, unless he is morally certain that a dispensation from the impediment can and will be granted. If an impediment is detected during the process of the publications, these should not be interrupted lest the good name of the parties be impaired, but the pastor should finish the announcements in the usual way, and request a dispensation from the impediment if a dispensation is possible (c. 1031). §2. PRE-NUPTIAL INSTRUCTIONS Before he marries them the pastor must instruct the* parties in the fundamentals of Christian doctrine if he finds them ig­ norant of the same (c. 1020, §2). But should they refuse to be bothered with instructions, he cannot for that reason alone denv his assistance at their marriage (Code Comm., June 2-3, 1918: zf da X, 345). The parties need not be asked whether they know enough Christian doctrine. From their general address and manner of speech the pastor can judge this. In the United States native born Catholics will generally need no such religious instructions. PRELIMINARIES TO MARRIAGE +55 However, in all cases the pastor or his delegate will instruct the nupturients concerning the sacramental nature of marriage, and the moral rights and duties of the spouses toward each other and toward the children (c. 1033). Before a mixed marriage is contracted, and in virtue of dio­ cesan law, a number of instructions must be given to the non­ Catholic. The object of these instructions, usually six in number, is not to force conversion to the faith, but rather to acquaint the non-Catholic concerning Catholic practises, such as Sunday .Mass, fasts, confession and communion, the Church’s teaching on birth control, on divorce, Christian education of youth, etc. The non-Catholic will be obliged to sign a promise to the effect that he will leave the Catholic spouse free in the exercise of the Catholic religion, and that he will not oppose the Catholic educa­ tion and upbringing of the children. Such a promise he cannot make in all sincerity without first understanding what the exercise of the Catholic religion implies. Catholics should he admonished to confess their sins, and to receive communion before or on the wedding day, since matrimony is a sacrament of the living and should he received in the state of grace (c. 1033). This admonition is part of the pre-marital in­ struction. Consulting the Ordinary If time permits, no priest may assist at a marriage in the fol­ lowing cases without first consulting his local Ordinary (usually the chancery office): (1) if vagi arc to be married (c. 1032); (2) if minor children contemplate marriage without the consent or knowledge of their parents (c. 1034); (3) in case of notorious apostates, or members of condemned societies (c. 1065, §2) ; (4) if public sinners or notoriously censured persons refuse first to con­ fess their sins (c. 1066) ; (5) if the parties arc determined to be re­ married later by a non-Catholic minister (c. 1063, §2) ; (6) if it is a marriage of conscience (c. 1104); (6) if the marriage is to take place in a private home, or in the chapel of a seminary, or of a religious house of women (c. 1109, §2) ; if a previous marriage has been contracted and the former spouse is still alive (c. 1069, §2). §3. Books of Special Reference Donovan, James J., The Pastor’s Obligation in Pre-nuptial Investigation, C. U. Press, 1940. Roberts, James B., The Banns of Marriage, C. U. Press, 1931. 456 PRELIMINARIES TO MARRIAGE Rice, Patrick. W., Proof of Death in Pre-nuptial Investigation, C. U. Press, 1940. Alford, Culver B, Jus Matrimoniale Comparatum, Rome; i-es. O’Brien, John A., Natural Birth Control. Couckc-Walsh, The Sterile Period in Family Life, New York; Wagner, 1933. Ostheimer, A. L., Instructions for Non-Catholics Before Mar­ riage, Philadelphia; Dolphin Press, 1939. Articles and Consultations Preliminary arrangements for marriage, ER. 1926 May, 489495. The 1941 Instruction on pre-nuptial investigations, ER. 1943 Jan. 14-22; Feb. 93-95. Banns for a convert, ER. 1918 Apr. 434; 1930 May, 507. Banns on the occasion of applying the Pauline Privilege, ER. 1929 Apr. 421. Announcing the banns during Forty Hours on a week day, ER. 1941 Mar. 279. Banns required per sc even before validating a marriage, ER. 1946, Jan. 73. Pastors cannot decide invalidity of former marriages, ER. 1921 July, 59-62; 1934, Aug. 186-190; 1941, Nov. 413-414. If pastor thinks marriage might prove unhappy one he can consult the Ordinary, HPR., 1937, June 856. Counselling sterilization for a prospective husband, HPR. 1927, Nov. 196-202. Indiscriminate dissemination of the rhythm theory, ER. 1940, Feb. 164. Is the reception of the sacraments preceptive before marriage? HPR. 1930 Mar. 629; 1933, May 856. Performs marriage for Catholic unwilling to confess, CST., I, 290. Can the pastor advise a merely civil marriage? HPR. 1930 Nov., 187-189. ART. Ill Impediments in General Canon 1035 lays down the general principle that all· persons may contract marriage who are not forbidden by law to do so. This prohibition to contract marriage is called an impediment. MARRIAGE IMPEDIMENTS IN GENERAL 457 The Code first speaks of impediments in general before con­ sidering impediments in particular. In this article, therefore, we shall consider: (1) the nature of marriage impediments; (2) their various general classes or categories; (3) who can establish im­ pediments; (4) who can remove them; (5) the manner of peti­ tioning dispensations. §1. Nature of Marriage Impediments A marriage impediment is in the nature of a prohibition. It may be defined as: an obstacle established by divine or ecclesiastical law which hinders certain classes of persons from contracting either a valid or a licit marriage. Since marriage between baptised persons is at the same time a sacrament, the Church must safeguard the sanctity of holy matri­ mony. This she docs not only by determining where, and when, and in what form of solemnity it will be celebrated, but above all by specifying who are the valid and licit subjects of the sacrament. However, in determining the subject of the sacrament the Church docs not overlook the fact that Christian marriage is essen­ tially a contract, and carries with it, besides, many social implications. Hence, as in the case of sacred ordination, mere worthiness or spirituality alone does not qualify all individuals to receive this sacrament. Again, because Christian marriage is a contract, besides being a sacrament, it follows that no matter how worthy and otherwise qualified one of the spouses may be, he receives neither the sacra­ ment nor contracts marriage, if the other is held by an impediment, though it affects him alone, e.g., the impediment of nonage. The reason is that a contract cannot limp, as it were (c. 1036, §3). §2. Impediments Classified Some marriage impediments are impedient, others diriment; some are public, others occult; some are of major, others of minor degree ; some are of divine, others of ecclesiastical law. An impedient impediment simply forbids a marriage under pain of sin, but docs not invalidate the contract. A diriment impediment, on the other hand, both forbids that a marriage be contracted, and if contracted renders it null and void. The latter can also be called an invalidating impediment ( c. 1036, §1, 2). A public impediment is one which can be proved in the ex­ ternal forum; otherwise it is occult (c. 1037). Let it be noted that the Code Comm, in answer to a doubt in reference to this 458 MARRIAGE IMPEDIMENTS IN GENERAL matter replied that a marriage impediment is public if the circum­ stances from which it arises are public (Acta, 1932, 248). This hardly improves the definition contained in c. 1037, namely, that an impediment is public which can be proved in the external forum. Facts are proved in the external forum, in the generality of eases, either by means of an authentic document, or by two competent and trustworthy witnesses. In this sense practically all canonical impediments arc public by their nature as will appear to anyone who analyzes them from this viewpoint. To the class of impediments occult by their very nature belong private vows, crime arising from adultery or conjugicide, and occult consanguinity arising from illicit intercourse. If such facts later become known it is per accidens. The distinction between public and occult impediments is made for this reason that dispensations from the former must always be recorded. Therefore, confessors can never dispense from them because the knowledge they receive through sacramental con­ fession must forever remain secret. This is true even in danger of death and in urgent eases outside of danger of death. But an impediment may be public in nature and occult in fact. It is then called an occult case. The impediment need not be of an incriminating nature to be occult in fact. The impediment for some reason or other simply docs not happen to be divulged ; it is not a matter of common knowledge in the locality. We shall have more to say about occult eases presently in connection with dis­ pensations. Impediments of minor degree arc: (1) consanguinity in the third degree of the collateral line; (2) affinity in the second degree of the collateral line; (3) public honesty in the second degree; (4) spiritual relationship; (5) crime arising from adultery. All other impediments are of major degree (c. 1042). The distinction here mentioned finds its sole application in C. 1054 which states that a dispensation from an impediment of minor degree is valid even though falsehoods were stated and truths were withheld in the petition, and even though the only motive offered by the petitioner was false. An impediment of divine law is one which has God for its author; an impediment of ecclesiastical law is one which has the Church for its author. Divine law impediments, in turn, proceed either from the natural law, e.g., itn potency, lack of consent, or from the revealed law, e.g., marriage of a Catholic with a non­ Catholic if there is danger of perversion to the former. MARRIAGE IMPEDIMENTS IN GENERAL 459 From impediments of the divine law the Church cannot dis­ pense. But from all impediments of ecclesiastical law she can dis­ pense. She can modify all such impediments, and even abrogate them. Thus, the Code abrogated certain impediments that existed under the former law, notably disparity of cult for baptised non­ Catholics. §3. Enactment of Impediments Only the supreme authority in the Church can interpret divine law marriage impediments, e.g, how far the divine law prohibits divorce and remarriage during the lifetime of a former spouse (c. 1038, §1). Again, only the same supreme authority can establish, modify and repeal impediments of ecclesiastical law (c. 1038, §2; 1040). In virtue of this wise ruling there is a uniform marriage law throughout the universal Church, and church courts when called upon to adjudi­ cate marriage cases need consult, and be guided by, but one Code. Thus, confusion such as we see in the civil legislation of our own coun­ try is avoided, a confusion arising from the fact that each State exer­ cises sovereignty in the matter of its marriage laws. The Code, further to insure uniformity in marriage impediments, rules in c. 1041 that no custom can introduce, modify or abolish an impediment. Therefore, local Ordinaries can establish no impediments, neither impedient nor diriment. At the most they can ban some marriages within their territory, but the ban must be of a tempo­ rary nature, and it cannot affect the validity of a marriage con­ tracted in contravention thereof (c. 1039). Thus, it seems, that diocesan statutes could order church weddings held up, say for six months, in the case of Catholics who had contracted civil marriage and now ask that their marriage be validated, and this as an act of penance for the scandal they gave, the parties during this interim being ordered to separate. §4. Manner of Granting Dispensations We have pointed out the advantage of a uniform marriage law. However, such uniformity is not an unmixed blessing. There is a disadvantage here in the sense that canon law is world-wide, and needs to be modified constantly in view of the varying needs, and social habits existing in different countries. Thus, while the prohibition against mixed marriages can be easily enforced in coun­ tries almost entirely Catholic, the same law, if enforced with 460 MARRIAGE DISPENSATIONS equal rigor in a country like ours, where non-Catholics far out­ number Catholics, could work a great hardship in many cases where a Catholic could not find a partner in marriage save a non­ Catholic. To remedy such drawbacks inherent in uniformity of legislation we have the necessary system of dispensations. As the law contained in the Code proceeds from the Roman Pontiff, only he can by original right dispense from marriage im­ pediments. But he may, and does, delegate his dispensing power to others, both for ordinary cases, and even more so for cases of emergency. A. Dispensing Power in Ordinary Cases By an ordinary case we are to understand any marriage which is contracted neither in danger of death, nor outside of such danger but under urgent circumstances where everything is prepared for the wedding and an impediment is discovered at the last moment, for both of which urgent cases broader dispensing powers arc conferred, as we shall see. In ordinary cases, then, priests cannot dispense from marriage impediments, but only the local Ordinary. And his powers to dispense are limited usually to those granted him by c. 81 and in his quinquennial faculties (724, 728). B. Dispensing Power in Urgent Cases These cases are of two kinds: (1) urgent cases in danger of death; (2) urgent cases outside of danger of death. (1) Urgent Cases in Danger of Death We shall distinguish between the power of local Ordinaries and the power of all other clerics. Dispensing power of local Ordinaries—In urgent danger of death local Ordinaries can dispense from all impediments of ecclesi­ astical law, whether public or occult, excepting two: (1) the im­ pediment of the priesthood; (2) the impediment of affinity in the direct line arising from a consummated marriage. They can dispense even from the need of witnesses, i.e., the canonical form. No canonical cause for the dispensation is required other than that relief of conscience is sought, or children are to be legitimated. In mixed marriages the usual promises are to be made, although it is probable that oral promises alone suffice, (cfr. c. 1043). MARRIAGE DISPENSATIONS 461 Dispensing power of priests—All priests have the same dis­ pensing powers in danger of death as has the local Ordinary just described, provided: (1) They are otherwise authorized to assist at the marriage; (2) The local Ordinary cannot be reached for a dispensation (c. 1044). .According to the Code Comm. (Nov. 12, 1922; Acta XIV, 662), the Ordinary is to be considered beyond reach if he can be reached only by telegraph or telephone. C. 1046 requires the priest to notify the Ordinary of the dis­ pensation he may have granted for the external forum, and that he record it in the marriage register of his own church. A confessor who hears the confession of a person in danger of death, and who does not himself assist at the marriage (a rare contingency), may dispense only from impediments occult by their nature. If he also marries the penitent, his powers outside of con­ fession extend to impediments by their nature public. (2) Urgent Cases Outside of Danger of Death Canon 1043 contemplates only one situation, namely, when all things have been prepared for the wedding, and the marriage cannot be postponed without probable danger of grave harm until a dis­ pensation is received from the Holy Sec, and an impediment is discovered in this situation. It is immaterial if the spouses knew of the impediment all the while (Code Comm., Mar. 1, 1921 ; Acta XIII, 348). Dispensing power of local Ordinaries—In the case just de­ scribed local Ordinaries have the same dispensing powers as they have in danger of death, except that they cannot dispense with the canonical form of marriage as they could in danger of death. It is naturally difficult to see how, outside of danger of death, there would be need of dispensing with an authorized priest or two witnesses. Note, however, that in virtue of c. 81 bishops can dispense apart from imminence of wedding if the case is urgent (Code Comm. July 27, 1942; Acta XXXIV, 241). Dispensing power of priests—If the local Ordinary cannot be reached in the sense explained above, the priest who is authorized to assist at the marriage, can dispense to the same extent as the local Ordinary (c. 1045, §3). Note well—In the present urgent case confessors as such can dispense only from impediments occult by nature. We say: as such. 462 MARRIAGE DISPENSATION’S •because if the confessor later assists at the marriage he has the same dispensing powers as other priests. And what arc those powers? We said they were the same as those enjoyed by the local Ordinary. All of which is true saving this important exception: priests can dispense only from occult cases, if they cannot reach the Ordinary. And what does c. 1045, §3 mean when it uses this term? '1'he Code Comm. Acta, XX, 61) stated that impediments which are public in nature but occult in fact are to be considered occult so far as the effects of this canon arc concerned. But if the impediment is public in its nature, the dispensation must be recorded in the mar­ riage register on general principles. How occult in fact must the impediment be to constitute an occult case? In prc-Code days authors defined an occult offense to be one which was not known to more than three persons in a village, four in a town, six in a small city, and eight in a large city. And while occult marriage cases arc not necessarily of an incriminating nature, yet the rule just stated may be taken as a safe norm even in the matter of marriage impediments in virtue of c. 18 which permits interpretation based upon parallel places. It does not change the case if the impediment, e.g., consanguinity, is public in some other locality, e.g., back home. The Code grants a priest these broad powers even outside of danger of death in order to safeguard his good name as well as that of the spouses. If a wedding had to be held up because of a recently discovered impediment, until such time as the Ordinary could be reached in person or by means of a letter, there would be general talk, and the blame could be laid to the pastor for ne­ glecting the proper investigation beforehand into the freedom of the parties to marry. If the pastor phoned in, he would again risk his good name. As to impediments public in fact, one cannot imagine such an impediment being concealed from the pastor until the last moment, especially if the banns were published. §5. Manner of Petitioning Dispensations Since it is more in conformity with canon law that marriage dispensations he requested and granted in writing, wc shall append below some typical forms that can be used for this purpose. But regardless of the nature of the impediment that is to be removed, certain general elements are true of all petitions as follows: Every petition ought to mention: (I) the full names of both contracting parties; (2) their religion; (3) their parish; (4) the impediment (s) from which a dispensation is sought; (5) the species MARRIAGE DISPENSATIONS 46Î infima in the ease of public honesty and crime; (6) whether in consanguinity, affinity or crime the impediment is simple or multiple ; (7) a canonical reason. Concerning canonical reasons what wc said under c. 84 (p. 119) should be borne in mind at this place. The Church docs not dis­ pense from her laws without a justifiable reason. If a dispensation is granted by delegated power without a sufficient reason, the dis­ pensation is invalid. And since dispensations arc granted only in favor of Catholics, it follows that in a mixed marriage the canonical reason offered must be true of the Catholic so that if aetas superadulta is alleged, since only the girl is allowed to offer this reason, the Catholic in a mixed marriage of this kind must be the bride. The petition, while addressed to the bishop, is mailed to the chancery office. If the confessor is requesting a dispensation, he must give fictitious names: Titius et Titia. If despite this precaution there may yet be danger of violating the sacramental seal, recourse may be taken to the S. Penitentiary, or to the Apostolic Delegate, or, since time will generally be urgent, the confessor’can dispense from occult impediment himself, and no record of his act is kept. Canonical causes for matrimonial dispensations — These are listed in /I.S.S. X, 291, of which we list those most frequently offered in practise: ( 1 ) Jngustia loci, or the smallness of the town, because the woman cannot find a suitable husband of her own station save the present one in the case ; (2) Jetas feminae superadulta, i.c., a girl over 24 has difficulty in finding any husband other than the present man ; (3) Paupertas viduae, if the widow has three or more children, and she has found the man under impediment willing to marry her, since it is difficult to find husbands under such circumstances; (4) Periculum matrimonii coram ministro acatholico; (5) Periculum matrimonii civilis; (6) Revalidatio matrimonii which was contracted outside of the Church, or is invalid for any other reason. (7) Praegnantia mulieris, i.e., to safeguard the good name of the woman and to conceal the sinful relations which otherwise would be known to have taken place outside of marriage. A dispensation granted for the impediment of consanguinity or affinity is valid even though an error occur in the petition or the grant concerning the degree of the impediment, provided the im­ pediment which exists in fact is inferior or equal to the degree men­ tioned in the rescript (c. 1052). 464 MARRIAGE DISPENSATIONS Specimen Forms of Petitions for Marriage Dispensations Petition For Dispensations in Mixed Marriages Your Excellency: N. N., a Catholic of................................parish, wishing to con­ tract marriage with (or, wishing to have the marriage validated— or, wishing to have the marriage rectified by a sanatio in radice) which was contracted at......................................on................................ in the presence of...........................................(civil official, non-Catholic minister) with N.N., baptised in the........................................ sect (or, unbaptized) humbly begs a dispensation from the impediment of mixed religion and disparity of cult ad cautelam (or simply, from disparity of cult). The reasons are................................................................................... (It is also desired that faculties to absolve from the reserved case of......................................................... be granted to the priest who hears the said Catholic’s confession.) Enclosed are $.................. alms. Respectfully......................... Promises in Mixed Marriages To Be Sent in Together with a Petition for a Dispensation from the Impediment. I, the undersigned, not a member of the Catholic Church, wishing to contract marriage with............................................. a mem­ ber of the Catholic Church, purpose to do so with the understand­ ing that the marriage bond thus contracted is indissoluble except by death. And I promise on my word of honor: 1. That........................................... shall be permitted the free exercise of religion according to the Catholic belief; MARRIAGE DISPENSATIONS 465 2. That all children of cither sex to be born of this marriage shall be baptized and educated in the Catholic faith, even though should die first. (Signature of non-Catholic) I, the undersigned Catholic, wishing to contract marriage with ............................................ hereby promise that all children of cither sex born of this marriage shall be baptised and educated in the Catholic faith. (Signature of Catholic) We, the undersigned, hereby certify that we witnessed the signatures of the above parties in their presence, and in the presence of each other on this............ day of............ 19............. at........................... (Signature of Priest) (Signature of additional witness) In my judgment the contracting parties appear sincere, and there seems to be no danger of perversion. (Signature of Priest) Petition For Dispensations from Impediments Other Than Mixed Religion or Disparity of Cult Your Excellency: N. N. of................................parish, and N. N. of............................. parish, (or both of................................parish), humbly beg a dis­ pensation from the impediment of...................................... in order to contract marriage (or in order to have their marriage validated). MARRIAGE DISPENSATIONS 466 The canonical reason(s) is (are).................................................. Enclosed please find $......................... alms. Respectfully, Rev.......................... In consanguinity and affinity cases add the genealogical tree: N.N........................ (Common Stock) 1. N. N................................ 2. N. N..................... .......... 3. N. N................................ 1. N.N................................ 2. N. N................................ 3. N. N................................ Petition For a Sanatio in Radice Your Excellency: N. N. of this parish was civilly married to N. N., a non­ Catholic baptized in the........................................ sect (or unbaptized). N. N. is now repentant and wishes to have the marriage validated. But the non-Catholic does not believe in formal promises, nor in the necessity of renewing consent before the priest. However, he (she) is not opposed to the Catholic baptism and education of the children. Both parties love each other sincerely so that there is no danger or possibility of a divorce. Therefore, in the name of N. N., the Catholic, I beg that Your Excellency grant a sanatio in radice in this case, thereby removing the impediment of......................... and dispensing from the law requiring renewal of consent. En­ closed arc the signed promises. Respectfully, Rev.......................... Petition For a Dispensation from the Banns Your Excellency: N. N. of, parish and N. N. of, MARRIAGE DISPENSATIONS - 467 ........................ parish, (or N. N. and N. N. both of................................ parish) humbly pray that Your Excellency grant them a dispensa­ tion from..................................... publication(s) of the banns. The reasons arc..................................................................................................... Enclosed please find $.................. alms. Respectfully, Rev........... ..................... Books of Special Reference Marbach, Joseph F., Marriage Legislation for the Catholics of the Oriental Rites in the United States and Canada, C. U. Press, 1946. O’Mara, Wm. A., Canonical Causes for Matrimonial Dispen­ sations, C. U. Press, 1935. O’Keefe, Gerald M., Matrimonial Dispensations, Powers of Bishops, Priests and Confessors, C. U. Press, 1927. Articles and Consultations American civil legislation on marriage compared with Code law, Jurist 1946, Oct. 477-502. Prohibiting a marriage pro tempore, ER. 1927, Nov. 525. Can pastors delegate the powers of c. 1044, 1045? ER. 1943. Jan. 59-60. A casus perplexus, HPR. 1923, Mar. 633; 1923, Sep. 1299; 1925, Aug. 1204-1207. Can the pastor who discovers the impediment of the bond in confession assist at the marriage? HPR. 1923, June 973. Confessor detects impediment of bond before the wedding, HPR. 1930, Feb. 518-519. Absolving and dispensing power in danger of death, ER. 1931, Sept. 255-277. Dispensing from affinity in the direct line, ER. 1925, Aug. 197198; HPR. 1924, Mar. 619. Marriage in danger of death witnessed by confessor, HPR. 1923, Sept. 1303., Delayed dispensation and validity of marriage, ER. 1920, Mar. 338-340. ' Error in the marriage dispensation, ER. 1923, Nov. 536. 468 IMPEDIMENT OF VOWS Arc dispensations by telephone valid? HPR. 1931, July 10951096. Some reasons for marriage dispensations, HPR. 1933, Apr. 738. Fees for dispensations, HPR. 1922, Mar. 655. Marriage dispensation fees and the poor, HPR. 1936, May 868. Expired marriage dispensation, ER. 1941, June 525; HPR. 1930, July 1092; 1931, Jan. 404-405. ART. IV Impediments in Particular Before he assists at a marriage, the priest must first inquire into the marital freedom of the intended spouses, i.e., into their freedom from marriage impediments, as was already said. Those impedi­ ments we shall now consider, each in turn. Only that class of im­ pediments which embraces impedient and diriment impediments will he of interest to us here, whether public or occult is immaterial. The Code contains 7 impedient impediments, and 13 diriment impediments. Others which may have existed under pre-Code law arc no longer in force. However, if a marriage was contracted prior to May 19, 1918, in contravention of the law then in force, the marriage remains invalid under the Code, and must be vali­ dated either by renewing consent after a dispensation is obtained from the pre-Code impediment, unless the impediment ceased of itself, e.g., nonage, or it must be validated without renewal of consent through a sanatio in radice (Code Comm. June 2-3, 1918; Acta X, 346). We shall consider first the impedient, and then the diriment impediments. §1. Impedient Impediments These, as was said, simply forbid marriage, but do not invali­ date it. We can reduce them to three categories, although they are seven in number: (1) simple vows; (2) legal adoption; (3) mixed religion. A. Simple Vows (c. 1058) Solemn vows are those which are made in a religious Order in perpetuity. All other vows are simple vows. Simple vows are public vows if they arc professed by candidates IMPEDIMENT OF VOWS 469 in religious Congregations or Orders, (if made in an Order, they are necessarily temporary in nature). All other vows arc private vows. The following simple vows, whether public or private, forbid marriage under pain of sin: ( 1 ) The vow of simple virginity, i.e., the vow to avoid every deliberate consummated sin against chastity; (2) The vow of perfect chastity, i.e., the vow to avoid every deliberate sin against chastity, both consummated and unconsum­ mated ; (3) The vow not to marry; (4) The vow to receive sacred orders; (5) The vow to embrace the religious state. If by particular law a simple vow has the effect of invalidating marriage, e.g., the simple vows taken by Jesuit scholastics, then the vow will invalidate marriage, otherwise no simple vow invali­ dates marriage. In practise it is usually the confessor who meets with the im­ pediment of the vow. If he is certain that the penitent made a real vow and not a mere promise, he will apply to the chancery office for the necessary dispensation, and will use a fictitious name for the penitent. But if the penitent is a religious fugitive or apostate, the confessor as such can do nothing, because the vow is public in nature. The vow is reserved to the Holy See or the local Ordinary (cfr. p. 379). If the penitent had been dismissed from his religion with temporary vows, the vows automatically ceased upon his dis­ missal (cfr. p. 390). B. Legal Adoption In canon law legal adoption renders a marriage between foster parent and foster child illicit, provided the civil law of the country recognizes it as an impedient impediment (c. 1059). In the United States legal adoption nowhere exists as a civil law impediment (Woywod, o.c., n. 1038). C. Mixed Religion and Disparity of Cult There are no impediments more frequently met with in our country than these two. This is due to our large non-Catholic population among whom Catholics are often urged by circumstances to choose their life partners. 470 MIXED RELIGION—DISPARITY OF CULT (1) Definitions The impediment of mixed religion forbids marriage of a Catho­ lic with a baptised non-Catholic. It is an impedient impediment only (c. 1060). The impediment of disparity of cult forbids marriage of a Catho­ lic with an unbaptised person (c. 1070). This is an invalidating impediment, and as such docs not belong in the present section which is considering only impedient impediments. However, the two impediments have so much in common that by discussing them together wc shall avoid useless repetition and promote clearness of thought. To have an impediment of mixed religion it is not necessary that the non-Catholic shall have been baptised in a Protestant or schismatical sect. A person who has been baptized in the Catholic Church and who later joined some heretical or schismatical sect creates the impediment if he wishes to marry a Catholic. If a per­ son is a Protestant only in the sense that he attends, and belongs to a Protestant church, but is not baptised, wc have the impediment of disparity of cult. Sometimes a Catholic will want to marry a person who was baptised a Catholic in infancy but was raised a non-Catholic and belongs to no non-Catholic Church. Wc have no impediment here, just as wc have no impediment if a Catholic wishes to marry a fallen away Catholic belonging to no sect, or an excommunicated Catholic, or a Catholic who has joined the Free­ masons, or some other forbidden society. In cases of this kind the bishop will he consulted, and he will permit marriage at the most, no dispensation being needed, but he will require of the parties the same written guarantees as in the case of mixed marriages strictly speaking. For here there is the same danger of perversion to the Catholic and the children as exists in mixed marriages (c. 1065, 1066). If it is not known for certain whether a non-Catholic is bap­ tised or not, it is not permitted to give him Catholic baptism unless he wishes to take instructions and join the Church. Rather a dis­ pensation will be sought from the impediment of mixed religion and disparity of cult ad cautelam (for caution’s sake). We already spoke on this on p. 453. (2) Promises or Guarantees The Church most severely prohibits mariage between a Catholic and a non-Catholic because of the general and well-founded pre­ sumption that such unions constitute a source of danger, or per­ MIXED RELIGION—DISPARITY OF CULT 471 version, to the faith of the Catholic party and the offspring. Hence, she will not permit these unions unless, in addition to the usual canonical reason for a dispensation, there is some assurance that such danger of perversion will not be present in any given contem­ plated marriage (c. 1060). Therefore, before a dispensation from the impediment of mixed religion or disparity of cult will be granted, both the Catholic and the non-Catholic must promise or guarantee that all the children to be born of the union will he baptised and educated in the Catholic faith. Moreover, the non-Catholic must promise not to interfere in the Catholic’s practise of his or her religion (c. 1061). Cfr. also what was said on this point on p. 455, and refer to the specimen form of promises given on p. 463. In an answer of the Holy Office (Jan. 16, 1942, Acta, 1942, 22) it was ruled that the promise to educate the children as Catholics need be given by the non-Catholic only in respect to children to be born, not in respect to children already born of the union, e.g., if there is question of validating a civil law marriage. But the Catholic must promise to strive to the best of his or her ability, especially by means of prayer and good example, to bring the other children eventually into the Church. It docs not suffice that the parties in mixed marriages sign the promises. There must be moral assurance that the promises will be kept (c. 1061). In the last analysis it will be the priest who instructs the non-Catholic who will give this assurance when he requests the dispensation. If from the general conduct of the non­ Catholic, or even of the Catholic, in his interviews with them prior to the wedding, the priest feels that the promises are not given sincerely, or that the non-Catholic is going through the instructions in a most unconcerned frame of mind, he ought to report his im­ pressions to the chancery, and abide by their judgment. On June 14, 1932, the Holy Office (Acta XXIV, 25) decreed that the promises in mixed marriages (this term is not to be con­ fused with mixed religion, as it embraces marriages contracted with the impediment either of mixed religion or disparity of cult), the H.O., we repeat, decreed that in all such mixed marriages the promises be drawn up in a form recognized by the civil law of the country, and enforceable in the secular courts. But in a subsequent private answer to a bishop of Ireland (cfr. Bouscarcn, Canon Law Digest, I, 506), the H.O. declared that its decree was not intended for countries where the civil law docs not recognize the binding force of promises which relate to the future education of the children. In the United States some jurisdictions have denied the validity of 472 MIXED RELIGION—DISPARITY OF CULT such promises, while most others have had no occasion to review such cases. Therefore, until it is certain that a given jurisdiction will uphold the legality of the promises, the decree of the H.O. need not be observed. The parties in a mixed marriage are never allowed to renew marital consent before a non-Catholic minister of religion. And if the pastor fears they will do so, e.g., the non-Catholic’s father is a Protestant minister or a Jewish rabbi, he will not assist at their marriage before consulting the Ordinary (cf. c. 1063). If they approached the minister before coming to him, he must obtain facul­ ties to absolve the Catholic from his censure (c. 2319). The pastor should with great solicitude see to it that thost who have contracted mixed marriages, and live in his parish, faith­ fully carry out their promises. Pastors should from time to time instruct their people on the dangers inherent in mixed marriages, e.g., by occasional sermons in church on this subject (c. 1064). Concerning banns in mixed marriages we have already spoken. Concerning the ceremonies in mixed marriages, cfr. p. 495. Books of Special Reference White, Robert J., The Legal Effect of Ante-Nuptial Promises in Mixed Marriages, Philadelphia: Dolphin Press, 1932. White, Robert J., Canonical Ante-Nuptial Promises and the Civil Law, C. U. Press, 1934. Boyle, David J., The Juridic Effects of Moral Certitude on Pre-Nuptial Guarantees, C. U. Press, 1942. Schenk, Francis J., The Matrimonial Impediments of Mixed Religion and Disparity of Cult, C. U. Press, 1929. Lowry, James M., Dispensation from Private Tows, C. U. Press, 1946. Ileneghan, John J., The Marriages of Unworthy Catholics, C. U. Press, 1944. O’Donnell, Cletus F., The Marriage of Minors, C. U. Press, 1945. Articles and Consultations Legal relationship impediment in the U. S., ER. 1934, Apr. 394-403. Which bishop dispenses in mixed marriages? HPR. 1938, Sept. 1292. Meaning of universa prolis, ER. 1944, May 389; 1930, Nov. 533; 1934, May 534. MIXED RELIGION—DISPARITY OF CULT 473 The wrong dispensation for mixed marriages, ER. 1931, Feb. 124-139; Mar. 282-295; Apr. 371-387. Sincerity of promises must hr evident, HPR. 1929, June 998; How evident? HPR. 1938, Nov. 172. Can promises be oral? HPR. 1925, Aug. 1212. Good faith required in pre-nuptial promises, ER. 1921, Sept. 257-262. Must promises be drawn up in form recognized by U. S. courts? ER. 1932, Apr. 408-411 ; 1933, Feb. 185-190. N. Y. court upholds pre-nuptial agreements, ER. 1943, Jan. 60. Nature of pre-nuptial instructions in mixed marriages, ER. 1929, Oct. 399-408. Promises apply only to children not yet horn. The Jurist, 1942, Apr. 185. Second marriage before minister, ER. 1934, Feb. 173-175; HPR. 1921. Sept. 1143. A schismatic marries an unbaptised person, marriage valid? HPR. 1938, July 1075. Mohammedan marriage through inadvertance, ER. 1938, Apr. 478. Does disparity of cult hind Uniates? ER. 1931, Oct. 409. Dispensation to marry a Jew. ER. 1936, Nov. 533-534. Baptised Catholic, raised non-Catholic, marries infidel, valid marriage? HPR. 1940. Nov. 169. No mixed marriage present, but guarantees advisable, ER. 1939. Feb. 166. Procedure in marrying a Catholic girl to an apostate Catholic, IIPR. 1936, Mar. 631. Marriage with declared unbelievers an impediment? HPR. 1938. Aug. 1188. Performs marriage for a Catholic unwilling to confess, CST. I, 290. How to apply to chancery if non-Catbolic was baptised Catho­ lic but not raised a Catholic, ER. 1923, May, 517. §2. Diriment Impediments Diriment impediments, we said, are those which invalidate marriage. As among the impedient impediments mixed religion occurs the oftcncst. so among the diriment impediments disparity of cult ranks first in frequency. In fact, these two impediments, namely, mixed religion and disparity of cult, both of which wc have already discussed, are probably responsible for 90 percent of 47+ NONAGE all marriage dispensations granted by the chancery offices in this country. Next to them probably comes consanguinity, followed by affin­ ity, and the impediment of crime arising from adultery. All other diriment impediments arc quite negligible in the sense that the priest in his pre-marital investigation seldom meets with them. It is true that the impediment of the bond shows up very often, but in most cases it is but an apparent impediment, otherwise the parties would hardly approach the priest to get married. Were it a real impediment a dispensation would be impossible since it is an im­ pediment of the natural law. But where it is only an apparent impediment, although a dispensation is out of place, yet the case can be referred by the pastor to the chancery office, or to the dio­ cesan court, depending on circumstances to be more fully described in Book IV of this Manual. To say more here would be to an­ ticipate unnecessarily (cfr. also p. 476). The diriment marriage impediments are thirteen: (1) nonage; (2) impotency; (3) the bond; (4) disparity of cult; (5) major orders; (6) the solemn vow of chastity; (7) abduction; (8) crime; (9) consanguinity; (10) affinity; (11) public honesty; (12) spiritual relationship; (13) legal adoption. Concerning deficient consent, and disregard of the juridical form of marriage, wc shall speak in the next two articles, since, although they invalidate mar­ riage, they are not impediments in the technical sense of that term. Xonage—Marriage cannot be validly contracted by a girl before her 14th completed year of age, nor by a boy before his 16th completed year of age (c. 1067, §1). This is an impediment of ecclesiastical law and docs not bind the unbaptised. The law of nature merely requires that marriage be contracted by a person who has sufficient knowledge and .discretion concerning the import of the marriage contract, which knowledge and discretion can be attained prior to the ages mentioned. But because in a case of doubt it would be difficult for the court to pass judgment upon the validity of a marriage where lack of sufficient discretion re­ quired by natural law is alleged, the Church establishes a more definite rule as just stated. Under the pre-Code law the age for marriage coincided with the age of puberty, i.e., the 12th year for the girl and the 14th year for the boy. These ages for puberty being based upon a presump­ tion of law, if it could be proved that a girl or boy had arrived at the age of womanhood or manhood before the 12th and 14th years respectively, e.g., in a case of pregnancy, the parties could contract marriage without a dispensation, the impediment of age IMPOTENCY 475 being considered non-existent in their case. Lnder the law of the Code the ages of marriage arc fixed; they do not coincide with the ages of puberty, and hence, the former principle that the parties are debarred from marriage before the ages established by canon law nisi malitia supplet aetatem no longer holds. Although canon law does not invalidate marriage after the ages of 14 and 16, yet pastors should persuade young people not to contract marriage before the age sanctioned by the custom of the place (c. 1607, §2). In fact, as we saw, pastors ought not to marry minor children at all against the just dissent, or without the knowledge of the parents, e. g., in a case of elopement ; at least he should not do this without first consulting the local Ordinary (cfr. c. 1034). Impotency—Antecedent and perpetual impotency, whether on the part of the woman or the man, whether known to the other party or not, whether absolute or relative, invalidates marriage bv the very law of nature. If there is doubt whether impotency is present, be the doubt one of law or one of fact, the marriage should not be forbidden. Sterility neither forbids nor invalidates marriage (c. 1068). The Code does not define what is meant by impotency; neither arc the authors agreed. All admit that the so-called impotentia coeun­ di constitutes impotency which invalidates marriage, namely, the inability to have natural sexual intercourse. Likewise all are agreed that sterility alone is present, and impotency is absent, when natural intercourse between two persons is possible, and at the same time both parties possess all organs necessary for generation, but genera­ tion does not follow, e. g., because the seed is not fertile, as in old people. The controversy concerns the case where intercourse is possible, but certain organs are lacking which are essential to beget offspring, e.g., if a woman lacks both ovaries, or the womb. Is such impotentia generandi also an impediment, or only the impotentia coeundi? The controversy has little practical value in view of the principle that marriage should not be impeded in doubtful cases of impotency, whether the impotency is one of fact or one of law. Moreover, the priest before assisting at a marriage need not inquire into this point at all. After marriage it will be for the matrimonial court to pass upon the validity of the marriage; and the doubt remaining, the marriage must be upheld as valid. But a dissolution may be possible on the ground of an unconsummated marriage. As to cases of vasectomy, whether these constitute impotency is disputed, since certain medical authorities teach that the organs can be restored 476 IMPEDIMENT OF THE BOND to their original condition so that intercourse would again be made possible for the man, i. e., impotency is not perpetual. A supervening impotency does not invalidate marriage. Nor docs antecedent impotency do so if the defect can in time disappear. Relative impotency invalidates marriage only between the parties in question, but not with respect to all other men or women. This is particularly verifiable when inability to perform the sexual act results more from psychical causes than from physical genital deformities. If a penitent has scruples concerning the licitness of conjugal relations on the score of possible impotency discovered subsequent to marriage, and if from what is said the impotency docs not appear altogether certain to the confessor he can advise the penitent to submit his case to the matrimonial court preferably through the pastor, and, pending the decision of the court, the penitent may continue to exercise his marriage rights. Impediment of the bond—They contract marriage invalidly who are held to the bond of an already existing marriage, even though the first marriage was not consummated (c. 1069, §1). This follows from the indissolubility of marriage; and it is a natural law impediment binding also the unbaptized. The principle suffers three exceptions, because in three cases a former marriage can be dissolved for reasons other than death : 1 ) by dispensation of the Pope in the case of a former non-consummated marriage; 2) through the application of the Pauline Privilege; 3) by a dissolution declared in favor of the faith outside of Pauline Privilege cases by the Roman Pontiff (cfr. art. VII of this chapter). There is no impediment of the bond present when the former marriage was contracted invalidly. But no priest may assist at the marriage of a divorced person, the former spouse being still alive, on the theory that the former marriage was invalid, or that it has been dissolved because the Pauline Privilege is applicable. All such cases must first be referred to the bishop or to the matrimonial court for an authoritative decision (c. 1069, §2). Sometimes a formal trial will be necessary, sometimes a summary decision may be given, as is explained more at length in Book IV. Even where the former marriage appears to have been dissolved by the death of the one spouse, but there is no certain proof of death, it is reserved to the bishop alone to permit a second marriage on the basis of presumed death (cfr. marriage processes in Bk. IV. Disparity of cult—This impediment was sufficiently described on p. 470-472. Major Orders—A man who receives subdeaconship is thereafter MAJOR ORDERS, SOLEMN VOWS, CRIMEN 477 debarred by ecclesiastical law from contracting a valid marriage (cfr. c. 1072). Since the impediment is of ecclesiastical law only, it may be dispensed from, but the dispensation is rarely granted, especially to priests. The latter, as we saw, cannot be dispensed even in danger of death, save by the Holy Sec. But those who have been reduced to the lay state of their own volition on the plea that they were forced into major orders, arc dispensed also from celibacy (cfr. c. 214). Solemn vow of chastity—Those who have professed solemn vows in a religious Order cannot validly contract marriage (c. 1073). The same is true of those who have taken only simple vows to which the Holy See has attached an invalidating force, as with the Jesuit scholastics. The impediment is of ecclesiastical law and admits of dispensation, which is not granted save for very grave reasons, e. g., in the case of dismissed religious. Abduction—As long as she remains in his power there can be no valid marriage contracted between the man and the woman whom he abducts with a view to marriage, or whom he forcibly detains in a place whither she went of her own accord (c. 1074). The impediment in question is not frequently met with at the present day, at least in our country. It should not be confused with cases of elopement where no constraint is exercised on the woman. Impediment of crime—Two crimes invalidate marriage: adul­ tery, and conjugicide. To discourage adultery, canon law renders a marriage invalid which is contracted by two persons who committed adultery while one or both were still held to an existing marriage, provided they promised each other marriage upon the death of the other spouse or spouses, or provided they attempted marriage (c. 1075, n. 1 ). Therefore a dispensation should always be asked from the impedi­ ment of crime when a civil marriage must be validated, the marriage having been contracted during the lifetime of a former spouse from whom a civil divorce was obtained, but who is now dead. The law presumes in this case that the parties united in civil marriage consummated the same, and thus were guilty of adultery. In cases where adultery is not evident, e. g., a civil marriage is not now being validated, the priest need not inquire concerning its presence during the investigation prior to marriage. If there was secret adultery and no attempt at marriage, the case will be one for the confessor, and he should petition a dispensation, concealing the name of the penitent. But in all cases the adultery must have been 478 CRIMEN—CONSANGUINITY formal: the party must have known that the other was a married or divorced person. The impediment of crime is also present, apart from the promise of, or attempt at, marriage, if the parties to the contemplated marriage had committed adultery (naturally during the continuance of a former marriage), and one of them had murdered his own or the other’s spouse (c. 1075, n. 2). Finally, the impediment of crime exists, apart from adultery, if both parties to the present con­ templated marriage had by mutual cooperation brought about the death of the former spouse (c. 1075, n. 3). While it is certain that the impediment of crime is multiplied if both nupturients had been married at the time of the adultery, there arc other cases where authors dispute either concerning the multiplication or the number of multiplications of the impediment. In practice the priest will state the facts of the case, and the Ordinary will grant the dispensation (if said case requires, or in some other such general and safe way. Whenever the Hol}· See grants a dispensation from the bonds of a sacramental non-consummated marriage, or permits a second marriage by reason of the presumed death of the former spouse, the dispensation or permission always carries with it an implied dispensation from the impediment of crime if such is needed, pro­ vided the crime did not arise from conjugicidc (c. 1053). The dis­ pensation is simply granted ; the priest need not inquire if it is needed. Consanguinity—Consanguinity is the relationship between per­ sons of the same blood, as the word itself denotes. In canon law consanguinity is computed by lines and degrees. The line is the series of persons who descend from the same stock, the latter being the individual from whom all persons of the same line descend. The line may be direct or collateral (oblique). Those persons constitute the direct line who descend one from the other, cither immediately, as father and daughter, or mediately, as grandfather and granddaughter. It is collateral when the persons constituting it, while all descending from the same stock, do not descend one from the other, c. g., unde and niece, brothers and sisters, cousins, etc. The degree is the distance which separates one relative from the other, whether in the direct line or collateral line (cfr. c. 96, gl). In the direct line there arc as many degrees as there are generations; or to put it another way, there are as many degrees as there are persons excluding the common stock (c. 96, §2). Thus between father and daughter there is one degree; between grand­ father and granddaughter two degrees, etc. CONSANGUINITY 479 In the collateral line there are as many degrees as there are generations in one line only; but if the two lines are unequal, there are as many degrees as there are generations in the longer line (c. 96, §3). Thus, between brother and sister there is one degree; between first cousins there are two degrees; between uncle and niece there are likewise two degrees, and because the lines are unequal we may say that a girl is related to her uncle in the second degree of the collateral line touching the first. By way of illustration we append a geneological tree: John Brown (Common Stock) Joseph Brown Mary Brown (married Adam Smith) Andrew Smith Charles Brown Elizabeth Smith William Brown In the above diagram William Brown and Elizabeth Smith are second cousins; they are related to each other in the third degree of the collateral line. John Brown is the common stock; he is the father of Joseph and Mary Brown, grandfather of Charles Brown and Andrew Smith, great-grandfather of William Brown and Eliz­ abeth Smith. Charles Brown and Elizabeth Smith arc uncle and niece; Charles Brown and Mary Brown are nephew and aunt. Charles Brown and Andrew Smith are first cousins. Joseph Brown and Mary are brother and sister, etc. Although all living men arc blood relatives in a sense, because all descend from Adam and Eve as from their common parents,· yet it is only near relationship which, as experience teaches, produces barren marriages, and for that reason is regarded by both canon and civil law as an invalidating impediment to marriage. In canon law consanguinity invalidates marriage between all persons of the direct line in all degrees, whether the persons arc of legitimate or illegitimate birth; hence, between mother and son, father and daughter, grandfather and granddaughter, etc. In the collateral line consanguinity is a diriment impediment to the third degree inclusively, and the impediment is multiplied as often as the common stock is multiplied (c. 1076, §1,2). Thus, if two brothers marry two sisters, the children of the both families will be first cousins to one another by a two-fold bond of consanguinity in the collateral line second degree. To what extent consanguinity is a diriment impediment by divine law is not certain beyond the first degree of the direct line. However, lest the Church exceed her powers by dispensing from the divine law in a doubt of law, she never dispenses from consanguinity 480 CONSANGUINITY—AFFINITY in the direct line, nor in the collateral line first degree to permit marriage between brother and sister. For the same reason a dis­ pensation is never granted in a doubt of fact as to whether the parties to a contemplated marriage arc related by consanguinity in any degree of the direct line, or in the first degree of the collateral line, e. g., if the groom is possibly the illegitimate son of the bride’s father by reason of illicit and secret intercourse which took place at one time between the bride’s father and the groom’s mother (c. 1076, §3). The local Ordinaries of the United States have no broad delegated faculties to dispense from consanguinity. They should use the greatest discretion in a marriage of uncle and niece, or aunt and nephew and they must formulate the petition for the dispensation in their own handwriting (S. C. Sacr., Aug. 1, 1931 ; Acta XXIII, 413). When requesting a dispensation in the case of consanguinity, the priest should mention the line and degree, and submit an outline of the gcncological tree. He would do well to add the relationship as this is expressed in common parlance, e. g., first cousins. If the impediment is multiple, this fact should be mentioned likewise, describing how the impediment became multiplied. Affinity—This word designates the relationship which exists between a married person and the blood relatives of his or her spouse. Such persons are said to be related not by blood but by force of law; they are law relatives. Frequent and intimate social intercourse such as that which is found among law relatives could easily lead to sins against chastity, did not the law discourage sexual intercourse by making a subsequent marriage to cover up the sins impossible, or at least difficult, by establishing a diriment impediment between close relatives-in-law. The impediment of affinity arises only from a valid sacramental marriage, whether the marriage is consummated or not (c. 97, §1). Hence, too, only from a marriage contracted between two baptiz.cd persons. If the marriage was invalid, it gives rise not to affinity but to the impediment of public honesty (cfr. infra). The impediment exists only between the man and the blood relatives of his wife, and between the wife and blood relatives of the husband (c. 97, §2). It is so computed that those who arc related to the husband by blood are related in the same line and degree by affinity to his wife, and vice versa (c. 97, §3). Thus, a man is related to his wife’s sister in the first degree of the collateral line, to his wife’s niece in the second degree of the collateral line, to his wife’s first cousin in the second degree of the collateral line. AFFINITY—PUBLIC HONESTY 481 to his wife’s mother in the first degree of the direct line, to his wife’s daughter from a former marriage, i. e., to his stepdaughter, in the first degree of the direct line, etc. Affinity invalidates marriage in all the degrees of the direct line, and to the second degree inclusively of the collateral line (c. 1077, §1 ). It is an impediment of ecclesiastical law, but the Church seldom dispenses from the impediment in the direct line consummato matri­ monio, not even in danger of death. For the reason underlying this strict practice, cfr. literature at the end of this article. Affinity does not beget affinity. 1'hat is, a wife's law relatives arc not related to her husband’s law relatives. Therefore, two brothers of one family can marry two sisters of another family. Affinity is multiplied as often as the impediment of consanguin­ ity from which it proceeds is multiplied. Again, as often as a person marries a blood relative of his deceased spouse (c. 1077, n. 2). Public honesty—Called also public decency and public pro­ priety, the Code term being publica honestas, this impediment arises from an invalid marriage, or from public and notorious concubinage. Were the marriage valid it would be affinity. It invalidates marriage between a man and the blood relatives of the woman only in the direct line, and to the second degree, and vice versa (c. 1078). Such a marriage would offend against the public’s sense of decency even though the first marriage was only apparently a marriage, or no marriage at all as in ojxm concubinage. The impediment is seldom verified because it would be a marriage between step-parent and step-child, and the spouses would be years apart in age. Civil marriage will not give rise to this impediment barring a future marriage with a step-child, unless the civil marriage was consummated (Code Comm. Mar. 12, 1929; Acta XXI, 170). Dispensations arc easily granted, because it is an impediment of minor degree. But a dispensation will never be granted if there is doubt that a person will marry his own child. Thus, it may happen that a man wants to marry his supposed step-daughter who was born nine months after her supposed father's death, and eight months after her mother’s marriage to her supposed step­ father. Spiritual relationship—The respect due to him from whom one receives baptism, or who is charged with his spiritual training by reason of baptismal sponsorship, seems incompatible with that equality which marriage is supposed to create between the spouses. And so, c. 1079 rules that there can be no valid marriage between 482 SPIRITUAL AND LEGAL RELATIONSHIP the baptised person and the minister (supposing a lay minister in an urgent case), or between a person and his sponsor at baptism. But dispensations are easily granted, the impediment being of minor degree. Legal relationship—Between an adopting parent and the adopted child marriage cannot be validly contracted in the Church if the civil law of the land regards adoption as an invalidating impedi­ ment (c. 1080). In the U. S. legal adoption is an impediment in no State. Note that here is a case where the Church canonizes civil Jaw. Books of Special Reference O’Dea, John C., The Impediment of Nonage, C. U. Press, 1944. O’Malley-Walsh, Essays on Pastoral Medicine, New York; Longmans Green Co., 1925. Rice, Patrick W., Proof of Death in Pre-nupfial Investigation, C. U. Press, 1940. Fair, Bartholomew, F., The Impediment of Abduction, C. U. Press, 1944. Donohue, John F., The Impediment of Crime, C. U. Press, 1931. Wahl, Francis X., The Matrimonial Impediments of Consan­ guinity and Affinity, C. U. Press, 1934. Articles and Consultations A girl cannot marry on her 14th birthday, ER. 1941, July 42. Impediment of age, HPR. 1920, Nov. 132-133. Girl’s civil marriage declared invalid from viewpoint of age. After conversion wants to marry a Catholic, HPR. 1934, June 9/0. Ovariotomy and impotence, HPR. 1922, Jan. 406-408. Impotence discovered after marriage, HPR. 1926, Apr. 730. Is sterilization an impediment? HPR. 1934, Mar. 628. A ratum et non-consummatum case, CST. I, 155. Proof of death of husband or wife, ER. 1933, Sept. 282-286. A ligamen case, ER. 1941, July 63. A combined bond and clandestinitv case, HPR. 1921, Feb. 415-416. Proof of death of war combatants, Jurist, 1946, Jan. 1-38. First husband has disappeared over a number of years. Can second marriage be validated? HPR. 1934, May 852. IMPEDIMENTS IN PARTICULAR 483 Was death of husband lawfully presumed here? CST. V. 276. Crime arising from presumed death of former spouse, HPR. 1928, Mar. 648-651. The impedimentum criminis, ER. 1919, Mar. 241-246. Promises marriage if he can divorce his wife. Is this crimen in respect to subsequent marriage? HPR. 1928, Feb. 542. Impediment of crime case, HPR. 1926, Sept. 1305. A case of combined crimen and Pauline Privilege, HPR. 1928, July 1110. A complicated crimen, affinity and public proprietv case, HPR. 1929, Feb. 539-542. A case of crimen, HPR. 1937, Jan. 416-417. A crimen impediment case, CST. 11, 7; IV, 66. Theory of ban on near kin marriages, ER. 1932, Aug. 136-148; Sept. 259-272. Double impediment of consanguinity, HPR. 1922, Mar. 656. Brother marries sister in infidelity, HPR. 1927, Sept. 1324-1331. Complicated case of consanguinity and affinity, HPR. 1928, May 889. Marriage between half brothers and half sisters, HPR. 1928, Nov. 190. A case of probable brother and sister marriage, CST. II, 58. Can spouses be left in bona fide who do not know they are first cousins? CST. V, 297. Does affinity affect the unbaptized? HPR. 1924, Tan. 394-398; 1926, Oct. 70. The impediment of affinity, ER. 1919, Oct. 396-401. No affinity between widow and husband’s brother-in-law, ER. 1930, Aug. 204. Marriage with mother-in-law after a doubtfully valid and dis­ solved previous marriage, HPR. 1927, May 868. Marriage with one’s step-daughter, HPR. 1927, May 874. Dispensing from affinity in the direct line, ER. 1925, Aug. 197198; HPR. 1924, Mar. 619. The impediment of public proprietv, ER. 1921, Oct. 492-498; HPR. 1922, Mar. 656. Theory of spiritual relationship in baptism, ER. 1937, July 81. Legal relationship impediment in the U. S., ER. 1934, Apr. 394-403. 484 MARRIAGE CONSENT ART. V Marriage Consent Because marriage is a contract, and consent is the very essence of contracts, it follows that no marriage can exist to which both parties do not consent. This marital consent cannot be supplied by any human au­ thority, as may be true of parental consent supplying for that of their minor children in other kinds of contracts (cfr. c. 1081, §1). Canon 1081, §2 defines the marriage consent to be: an act of the ivill whereby each party gives and accepts perpetual and exclusive rights to the body as concerns acts which tend by their very nature to the generation of offspring. Even though neither spouse at the time of the marriage is under the influence of extreme fright, drugs, intoxicants, etc., suffi­ cient to deprive one entirely of the use of reason, yet marriage consent may be absent due to: (1) deficient knowledge; (2) de­ ficient intention; or (3) deficient freedom. Concerning each of these possibilities we shall now speak in turn, though it may be remembered that the priest will seldom meet with these conditions in his investigation prior to marriage. Often they are withheld from him at that time, and the question whether consent was really given arises later when, after a divorce, one of the spouses alleges this as a cause for the matrimonial court to set aside the marriage and permit him to contract a new mar­ riage. Catholics must now sign a questionnaire under oath in which they state before marriage that they arc placing no obstacle to valid consent, which they will give unconditionally and of their own free will on the day of the wedding. Hence, in the case of Catholics who have made such statement in writing, marriages invalid by reason of deficient consent will he rare in future. Yet the following principles should be studied: (1) because it is only recently that signed statements have been requested of Catholics regarding the intention to contract; (2) because, a Catholic may wish to marry a divorced non-Catholic, or to have such marriage with him validated, and there may be no way in which this is possible except for the Church court to set aside the non-Catholic’s first union on the grounds that he gave defective consent, if this can be proved by him. It now remains to see how marriage consent may be absent be­ cause of: (1) deficient knowledge; (2) deficient intention; (3) deficient freedom. MARRIAGE CONSENT 485 §1. Deficient Knowledge This may arise either: (1) from ignorance; (2) from error; (3) from fraud. Ignorance—This is lack of knowledge concerning the purpose or nature of marriage. If a party docs not know this much at least concerning marriage that it is a permanent union of man and woman for the purpose of begetting children, the marriage will be invalid. But such ignorance is not presumed after the age of puberty, and one who later alleges such ignorance has the duty to prove it was present in his case (cfr. c. 1082). Provided the parties know as much as just stated concerning the nature of marriage, it will suffice for the validity of consent, and a more advanced knowledge of the physiology of conception and generation is not necessary. Any other ignorance in connection with marriage may be re­ duced to two headings, and considered separately, as arising cither from error or fraud. Error—While ignorance is rather a lack of knowledge, error is mistaken knowledge, or false judgment. Error invalidates mar­ riage in two cases: (1) If a mistake is made concerning the identity of the spouse, as where John marries Bertha believing her to be Ann (c. 1083, §1). Such mistakes arc hardly possible where courtship precedes marriage. (2) If a mistake is made concerning some quality of the other party, provided the quality or characteristic desired is such that it would amount to an error concerning the person himself (c. 1083, §2), as where one marries a slave thinking him to be a free per­ son {ibid.). In practise it will be difficult to prove that an error concerning some characteristic of the other amounted to an error concerning the person himself. The only way this can be shown is for the interested person to furnish proof that in his mind the desired quality or characteristic amounted to a conditio sine qua non. If a girl marries a man whom she believes to be temperate and it later turns out that he is a confirmed alcoholic, or if a man marries a girl whom he believes to be a virgin and he learns later that she was a woman of loose morals, the marriage will be invalid in the external forum only if the party had made it clear in writing, or before witnesses, prior to marriage that such qualities were de­ sired as a conditio sine qua non. In such cases error really amounts to deficient intention ; it has affected the will, not merely the intel­ 486 MARRIAGE CONSENT lect. Whereas, if one simply believes that the other spouse possesses certain desired characteristics, or hopes that he does, the error, if later discovered, cannot be brought forward to invalidate the marriage. This is true even though there is question of antecedent error, i.c., such that marriage would not have been contracted had the truth been known. From what has been said it follows that a simple error con­ cerning the indissolubility of marriage docs not invalidate marriage, even though it be antecedent error (c. 1084). Hence, a convert cannot ask for a declaration of the nullity of his first marriage so as to be permitted to contract a new marriage with a Catholic in the Church on the plea that at the time of his former marriage he entertained erroneous opinions about the indissolubility of marriage. Only if he (or any other person for that matter, but the case is more likely to occur with converts) can prove that he entered upon his first marriage under agreement that the union could be dissolved by a civil divorce at the volition of cither party, will the marriage he considered invalid. Here it is not error that invali­ dates marriage, but rather the presence of two conflicting intentions: the intention to contract a real marriage, and the intention to contract a dissoluble marriage. In such case the error is qualified, not simple. Where only simple error is present, it is presumed that the party wishes to contract marriage according to God’s plan, namely, an indissoluble marriage; and if he merely thought that the marriage could be dissolved by divorce, this error is presumed to have been overshadowed and absorbed by the more general intention to contract marriage according to God's plan. The error remained in the in­ tellect; it did pass over into the will and become an intention. Belief, or even subjective certainty, that one is contracting an invalid marriage does not necessarily exclude true marital consent (c. 1085). Hence, a civil marriage contracted by a Catholic can still be validated by the sanatio in radice without the renewal of consent according to the Catholic form (cfr. p. 510). Such a sanatio cannot be granted, however, if the party can prove that exceptional cir­ cumstances induced him to go through a civil marriage ceremony without the slightest intention of contracting marriage. Fraud—We said that error concerning some accidental quality with respect to the intended spouse does not invalidate marriage. Is this true even though an innocent spouse was deliberately misled into error, and deceived through the other’s misrepresentation, whether this consisted in conduct, words or silence? Suppose the man poses as a person of wealth, whereas he is poor; or suppose a man is silent concerning his past prison record, or a mental con­ MARRIAGE CONSENT 487 dition he has inherited, or a racial strain that docs not show up in him but later shows up in the offspring, etc. In cases of fraud such as these the civil courts will consider the marriage voidable, and will issue a decree of nullity upon re­ quest in order to repair the injustice. In the Church, on the other hand, a marriage where fraud had been practised and a grave injury suffered, cannot be considered voidable due to the fact that by divine law a valid marriage cannot be voided because it is indissoluble. Nor will the Church legislate that all marriages, where serious fraud had been practised, shall be considered invalid ab initio. This would be a dangerous policy, and the Church courts would soon be cluttered with cases, for there are extremely few alliances which do not create disillusionment for the parties as time goes on. There are remedies, however, against pre-marital fraud. One is a reasonably prolonged period of courtship. The other is for the party who fears he is being deceived to make it clear before marriage, either in writing or before two witnesses, just what he expects of the other, or docs not expect, and this he will formulate into a conditio sine qua non. If later he discovers that he was de­ frauded, he can have the marriage set aside as invalid from the beginning due to an error concerning a personal quality that amounted to an error in the identity of the person himself, as ex­ plained above. §2. Deficient Intention Marriage is also invalid due to lack of consent if, while the party labors under no ignorance or error, he nevertheless does not intend to contract marriage. But in the external forum it is presumed that the internal assent of the mind was in conformity with the words expressed, or the signs employed, in the marriage ceremony (c. 1086, §1). And the burden of proof that he gave no internal consent will rest with the plaintiff. There is no intention to contract marriage if even one party: (1) excludes marriage itself; or (2) all rights to the conjugal act; or (3) some essential property of marriage; or (4) if he places a condition to his consent and the condition is not verified. Whether these intentions or the conditioned consent are unilateral or bilateral, formulated into a conditio sine qua non or not, is immaterial. Exclusion of marriage itself—This happens in mock marriages. It happens in a marriage of convenience. It may happen in other kinds of marriages. The consent is only feigned. There is no marriage (c. 1086, §2). 488 MARRIAGE CONSENT Exclusion of the conjugal act—Here the very object of the mar­ riage contract is missing. There can be no contract without an object. By divine law the object of marriage is copulation for the purpose of perpetuating the human species. Thus, there is no marriage if the parties agree to have no children. But the marriage remains valid if only the exercise of the right to the conjugal act is denied at the very start. Here there is an understanding to abuse the right, rather than to deny it. Such would be the case where the parties agree before marriage to have no more than two children, or no children for the first two years, or until the husband finds better employment, etc. Exclusion of the essential properties of marriage—These are unity, sacramentality and indissolubility. In practise, however, it is the exclusion of the last that is most frequently encountered. If two persons agree before marriage that they may resort to divorce in the event the marriage proves unhappy, there is no marriage (cfr. c. 1086, §2). There must have been an agreement to this effect, i.e., indissolubility must have been excluded by a positive act of the will, otherwise the parties’ mere opinions concerning the permissibility of divorce will not affect the validity of the marriage. The determination to resort to divorce by only one party suffices. The agreement or determination must have been made prior to marriage, and in writing or before witnesses, to produce effects in the external forum. Conditional consent—The Church permits that marriage be contracted conditionally for grave reasons. The fact of conditional marriage should be manifested to the pastor, for until the condition is verified, the parties arc forbidden to cohabit, and if they do not cohabit people will take scandal unless it is known that a con­ ditional marriage was contracted. Naturally, only licit conditions will be manifested to the pastor. Seldom do such marriages occur. Most frequently, the condition remains a secret because it is illicit, but unless it was made prior to marriage and in writing or before witnesses so that proof thereof may be given to the court, the marriage always remains valid in the external forum of the Church. Resolutive conditions are not admitted by the Church, even though they concern something licit in itself, for this is opposed to the indissolubility of marriage. A resolutive condition is one where the termination of the marriage is made to depend upon the veri­ fication of some happening, e.g., I will marry you as long as you remain a Catholic. Suspensive conditions arc those where the com­ mencement of the marriage is made to depend upon the verification MARRIAGE CONSENT 489 of some happening. Concerning these suspensive conditions, c. 1092 rules as follows: Future conditions, if they concern something necessary, im­ possible, or dishonest, must be regarded as non-existent, the law­ presuming they were added through levity. If they are contrary to the substance of marriage, they invalidate marriage, e.g., the exclu­ sion of indissolubility. In all other cases they suspend the beginning of the marriage until the condition is, or is nut, verified, e.g., if my parents consent. Past or present conditions, namely, those which concern some past or present event or fact, leave the marriage valid or invalid, de­ pending upon whether the condition is, or is not, verified at the moment marriage is contracted. §3. Deficient Freedom Marriage consent, finally, may be invalid even though there is no ignorance or error, and even though the party intends to marry. This happens when unjust moral force in the form of blows and threats are used to extort his consent. In the passive agent we have grave fear. Whether we say the marriage is invalid through grave and unjust force in the active agent, or through grave fear in the passive agent, is immaterial, they being one and the same thing at this place. Force and fear arc correlative terms. In canon law grave fear unjustly inspired by a free external agent in order to extort marriage consent invalidates marriage; no other fear does this (c. 1087). (I ) The fear must be grave. It can be absolutely grave or rela­ tively grave, and either one will invalidate marriage. Fear is absolutely grave which suffices to overcome the mind and will of a firm and steadfast man, because of the grave losses he would other­ wise suffer, losses which arc considered absolutely grave in them­ selves, such as loss of life, limb, fortune or liberty. Relatively grave fear is that which suffices to overcome the mind and will of this or that individual in view of his or her frailty. Thus, what is called reverential fear, or the fear of offending one’s parents or superiors, could amount to grave fear, namely, if there were ex­ treme severity in the active agent and extreme sensitiveness in the passive agent. (2) The fear must be unjustly inflicted. This excludes fear proceeding from natural events, and requires that it proceed from a free external agent. Moreover, the human agent must be violat­ ing justice in demanding marriage. A judge does not inflict fear 490 MARRIAGE CONSENT on a young man unjustly if he threatens imprisonment unless the man either marries the girl whom he seduced or pays for the support of the child. But the girl’s relatives have no right to threaten him with bodily harm, and if the man marries the girl to escape these threats, because they arc unjust, the marriage will be invalid. At the most they can justly threaten to bring a lawsuit against him. And if in the face of this threat, he marries, the marriage is valid. (3) It is required that marriage be the only escape from the threats. Books of Special Reference Rimlinger, Herbert T., Error Invalidating Matrimonial Con­ tent, C. U. Press, 1932. Sangmeister, Joseph V., Force and Fear as Precluding Matri­ monial Consent, C. U. Press, 1932. Timlin, Bartholomew, Conditional Matrimonial Consent, C. U. Press, 1934. Bouscarcn, T. L. Canon Lato Digest, I, pp. 517-539 (for re­ ported Rota cases illustrating the law on matrimonial consent), Mil­ waukee; Bruce, 1942. Doheney, William J., Procedure in Matrimonial Cases, pp. 498-644 (for Rota cases and sentences illustrating the Code law on marriage consent), Milwaukee; Bruce, 1937. Griese, Orville N., Marriage and the Procreation of Offspring, C. U. Press, 1946. Articles and Consultations Marriage and insanity, ER. 1939, Oct. 325-343; CST. Il, 177. The mentally affected and valid marriages, HPR. 1923, Aug. 1192. Fraud in marriage, ER. 1922, Jan. 42-51. Bride deceives groom into marrying hcr, CST. II, 166. After marriage he discovers bride is not rich but a mere ad­ venturess, CST. IV, 75. Must pregnancy by another be revealed to the groom? CST. IV, 259; HI, 254. Girl deceives groom who marries through fear of civil law consequences, HPR. 1928, Dec. 302. A forced marriage, CST. II, 163. How reverential fear arises and how it is proved, CST. Ill, 122. MARRIAGE CONSENT 491 A case of reverential fear, CST. IV, 253; V, 272. Do insincere pre-nuptial promises invalidate marriages on grounds of fraud or unverified condition? ER. 1935, Jan. 72-75; 1934, Nov. 446-459; HPR. 1924; Aug. 1177; 1925, Jan. 405; 1934, Feb. 518-520. Insincere pre-nuptial promises must be proved by a formal trial, HPR. 1933, Apr. 742; Oct. 74. Rota case which annulled a marriage because of unfulfilled pre-nuptial agreement, HPR. 1923; Feb. 523. Mental reservations regarding offspring, ER. 1930, Jan. 71. Limiting the offspring, HPR. 1931, Oct. 70. Thcv will use contraceptives for limited time, HPR. 1931; July 1097. The.v intend not to have children, HPR. 1938, Dec. 286. Thcv agree to use the rhythm system, HPR. 1940, May 891894. Thev agree to raise the children non-Catholics, HPR. 1931, Mar. 630. Are most Protestant marriages invalid because of implied understanding on divorce? HPR. 1938, Dec. 281-283. He reserves the right of divorce, CST. Ill, 81. Limiting the time and number of offspring, CST. V. 252. Some practical questions on c. 1086, §2, ER. 1928, Oct. 402408. A dissertation on vitiated marriage consent, ER. 1939, June 481-497; July 31-49; Aug. 131-149. How invalidating conditions to marriage are proved, CST. V. 244. Discovering pre-nuptial invalidating conditions after marriage, ER. 1930, Jan. 71. Marriage on condition: If you become and remain a Catholic, HPR. 1933, Nov. 186-189. ART. VI Solemnization of Marriage We shall speak of the juridical, and then of the liturgical form of marriage. 492 FORM OF MARRIAGE - §1. Juridical Form of Marriage By the juridical form of marriage we mean that form which is required by law for the validity of a marriage. This includes the presence of the parties, witnesses, and the local Ordinary, pas­ tor, or delegated priest (c. 1094). Concerning the parties to the marriage it is necessary that they be present in person or through a proxy, and that they express their consent by words not using equivalent signs if they can speak (c. 1088). To contract marriage through a proxy it is necessary in canon law that the principal authorize this in writing, designating the proxy, and signing the document of mandate. Moreover, this document must be countersigned by the pastor, or the local Ordi­ nary, or a priest delegated by either of these, or by two witnesses (c. 1089). The civil law concerning the permissibility of marriage by proxy, and the formalities prescribed therefor should also be observed, at least for civil law recognition and effects. The parties are not forbidden to use an interpreter. But in this case, as also in the case of marriage by proxy, the permission of the local Ordinary must be obtained if time permits (c. 10901091). Concerning the witnesses, the Code in c. 1094 prescribes that they must be at least two in number. No special qualifications arc set down, and so it seems that it suffices that the witnesses have the use of reason, and are present to the extent that they can testify that the parties exchanged consent before the priest. Some would debar non-Catholic witnesses, on the general principle that non­ Catholics should not be admitted to participate with Catholics in sacris. The validity of this argument can be questioned since the witnesses merely assist passively at the administration and re­ ception of a sacrament. At any rate, in marriages contracted with a dispensation from the impediment of disparity of cult there would be no sacrament, and the argument could not extend to that case. Concerning the assistance of the authorized witnesses, i.e., the local Ordinary, the pastor or their delegate, we must distinguish between valid and licit assistance. A. Valid Assistance of the Priest Only those marriages arc valid which are contracted before the pastor, the local Ordinary, or a priest delegated by either of them, and before two witnesses (c. 1094). To assist validly, the pastor must be in his parish at the time of the marriage, and in that case he assists validly at all marriages, FORM OF MARRIAGE 49Î both those of his subjects and those of non-subjects. But the pastor cannot leave his territory and witness the marriage even of his own subjects in another parish, e.g., in a hospital situated in another parish, without delegation from the local Ordinary or the pastor of that territory (c. 1095, §1, n. 2). Equivalent to pastors are.: the administrator of a vacant parish (c. 473, n. 1); the vicar substitute who takes the place of the pastor when the latter absents himself longer than a week (c. 474; Code Comm., July 14, 1922; Acta XIV, 527); the vicar adjutant if he has full charge of the parish (c. 475, §2; Code Comm., May 20, 1923; Acta XVI, 114). Hence,whatever is said in this article about pastors must be applied to the priests just listed. The pastor may delegate any priest to assist validly at a mar­ riage, provided the marriage takes place within the parish of the delegating pastor (c. 1095, §2). The delegation must be given to a specified priest for a specified marriage, otherwise the dele­ gation is not valid. However, assistant pastors (vicarii cooperatores) may be given general delegation to assist at any marriage that may come up, but only within the parish to which they have been assigned (c. 1096). The delegation is not sufficiently specified if a pastor informs the religious superior that he delegates that priest to assist at a certain marriage the following Sunday in the mission church whom the superior will send (Code Comm., May 20, 1923; Acta XVI, 115). To avoid this pitfall let the pastor delegate the superior himself to take the marriage, granting him at the same time powers to subdclegate one of his subjects; or let the superior mention the name of the priest who will supply so that the pastor may then and there delegate him. Assistant pastors have not in virtue of their office the right to assist at marriages. They must receive explicit delegation to that end, either from the pastor or the local Ordinary, e.g., in their letters of appointment, or from the diocesan statutes (Code Comm.; Acta 1942, 50). Assistant pastors who have received general delegation to wit­ ness marriages, may subdelegate another specified priest to assist at a specified marriage (Code Comm., Dec. 28, 1927 ; Acta XX, 61). A priest who has received delegation for a specific marriage only, may not subdelegate his powers, unless this was expressly permitted by the delegating authority (c. 199, §4). B. Licit Assistance of the Priest Supposing the requirements of valid assistance arc verified in a given case as just described, it is furthermore required for licitness 49+ FORM OF MARRIAGE that the parties be the subjects ol the pastor, whether the latter personally witnesses the marriage, or his delegate. In the matter of marriage it is not required that the parties have a domicile or quasi-domicilc in the parish, but it suffices that they have sojourned in the parish at least a month (c. 1097, §1, n. 2). If the parties belong to different parishes, the rule is that the bride’s pastor has prior rights, unless a just cause excuses from observing this precept (c. 1097, §2). If the parlies belong to diifercnt Catholic rites, the groom’s rite and pastor should be preferred (c. 1097, §2), unless particular law rules otherwise as with the Greek Ruthenians in the U. S. The pastor, or his delegate, may assist at the marriage of non-subjects if he has received permission (not delegation) from the proper pastor of the parties, or from the pastor of the bride preferably. If he obtains permission from the proper pastor, he may keep the stolefee, unless permission was granted with the clause reservato jure stolae. He must restore the stolcfce if neither party was his subject, and if he failed outside of a grave necessity (c. 1097, §1, n. 3) to obtain permission of the proper pastor, or of either proper pastor if the parties belonged to different parishes (c. 1097, §3). C. Valid Marriages Without a Priest ?\n exceptional form of marriage is that which is described in c. 1098. When neither the local Ordinary, nor the pastor, nor their delegate, can be approached, or can come, to assist at mar­ riage, a marriage is valid before two witnesses alone: (1) in danger of death; (2) outside of such danger if it can be prudently foreseen that neither the local Ordinary, nor the pastor, nor a priest delegated by them, can be approached, or can come, to assist at the marriage within at least a month. D. Persons Held to the Canonical Form The priest who assists at a marriage need seldom inquire wheth­ er the parties are bound to observe the canonical form of Catholic marriage. It is especially after a civil marriage has taken place, and the parties obtain a divorce, and wish to have the former marriage declared invalid by the Church authorities because of lack of canonical form, will it be necessary to inquire whether they were held to observe the canonical form of marriage. Hence, it may suffice to state in general terms at this place that only those who have been both baptized and reared in the Catholic faith arc held to the form above described (c. 1099; also literature below). FORM OF MARRIAGE 495 §2. Liturgical Form of Marriage Mixed marriages—Here all sacred rites are forbidden, unless the local Ordinary allows one or the other ceremony to avoid graver evils (cfr. c. 1102). Hence (where the law is enforced), no stole, nor surplice, nor the blessing of the ring, nor the recitation of prayers is allowed, although an exhortation may be given. The parties simply exchange consent in the presence of the priest and two witnesses, the special formula being found in the average ritual printed for the American clergy. The banns of marriage are not published (c. 1026). Catholic marriages—Outside of the case of necessity, e.g., danger of death, when the bare essential ceremony suffices, the priest asking the parties separately: Do you, N. N., take Λ'. Λ'. for your lawful husband (wife) ? and the parties each responding in the affirmative, and the priest adding: I pronounce you man and wife, marriage ought to be celebrated according to the rites pre­ scribed in the liturgical books. This includes besides the asking and receiving of the consent of the parties as described in the ritual, marriage at Mass and the nuptial blessing. But neither the Mass nor the nuptial blessing is required for the validity of marriage, nor arc they strictly perceptive by common law, although the spouses should be exhorted to assist at Mass, and to receive the nuptial blessing (c. 1101). The latter consists of three prayers found in the Missal, and included in the Missa pro sponsis, namely: Propi­ tiare, Domine, and Deus, qui potestate, which arc both said over the spouses at the conclusion of the Pater Noster of the Mass; the third prayer being, Deus Abraham, said before the Placeat tibi at the end of the Mass. Although the nuptial blessing is forbidden during the closed seasons, namely, from the first Sunday of Advent to Christmas, and from Ash Wednesday to Easter (c. 1108, §2), still marriage itself is not forbidden during those seasons. The nuptial blessing being intended principally for the bride, as can be ascertained from its formula, it may not be given to a widow who received the blessing in her first marriage (c. 1143). This rule is probably intended to discourage second and further marriages, since the preceding canon states that while such further marriages are not forbidden, yet chaste widowhood is to be pre­ ferred (c. 1142). Marriage of conscience—The Mass, nuptial blessing and other public ceremonies are dispensed with in a marriage of conscience. This is not to be confused with a mere quirt marriage made possible by a dispensation from the banns. A marriage of conscience is 496 FORM OF MARRIAGE one where not only are the banns dispensed with, but the marriage is contracted with the obligation of secrecy on the part of the local Ordinary, the officiating minister, the witnesses, and the parties, so long as the latter desire the marriage to remain a secret. A grave reason is required for a marriage of conscience, e.g., unjust and violent opposition of the parents, disgrace to the family should the marriage become known, difficulties of the civil law, etc. Only the local Ordinary may permit such marriages. The reason is that they are fraught with dangers, an existing marriage may remain undetected since the banns are omitted and no one knows of the present marriage except the parties and witnesses, the priest and the local Ordinary ; the children may possibly not be baptized, or baptized under fictitious names without having their true names later recorded at least in the secret diocesan archives, etc. (cfr. c. 1104-1106). Time and place of marriage—Marriage may be contracted any day of the year, and at any time of the day by common law, although the spouses are to be exhorted to marry at Mass, as we said (c. 1108, 1101). If diocesan statutes forbid marriage on Sundays, or in the evening, they should be observed. Marriage should be celebrated in the parish church, or, by per­ mission of the pastor, in a public or semi-public oratory. Only the local Ordinary may permit marriage in private homes, or in the churches or chapels of seminaries and religious communities of women (c. 1109, fl, 2). Mixed marriages arc to take place outside of church (c. I 109, §3). With us they have until very recently taken place in the parlor’ of the recton', never in the church. Registration of marriage—Every marriage must be recorded in the marriage register of the parish where it was celebrated. More­ over a note of the marriage must be entered in the baptismal regis­ ter of the parish where the parties were baptized, i. c., in the margin, and on the page where their names appear. If the marriage and baptism parishes differ, the pastor, or his delegate, who witnessed the marriage should send notice thereof to the pastor(s) of the parish (es) where the parties were baptized (c. 1103). This latter is a serious obligation, and one until recently often overlooked. The law is designed to prevent the parties from contracting a second marriage should they attempt a new union after obtaining a civil divorce. Code Comm. Interpretations of the Law on the Marriage Form C. 109-1—The vicar substitute who replaces a temporarily absent pastor, as in c. 465, §4, outside of a case of emergency, can FORM OF MARRIAGE 497 validly assist at marriage after, but not before, the Ordinary approves of him as a vicar substitute. A religious vicar substitute needs only the approval of the local Ordinary, not the approval of his superior, to assist validly at marriages {Acta, 1922, 527). C. 109-4—The supplying priest who, as in c. 465, §5, replaces an absent pastor in an emergency can validly assist at marriage even before the Ordinary’s approval of his appointment by the pastor {Acta 1922, 527). ’ C. 1095, §2—The priests mentioned in the above two para­ graphs as competent to assist validly at marriage can delegate a specified priest to assist at a specified marriage. Such delegation the administrator of c. 472 can also confer. Whether the same delegating power is found in the vicar adjutant of c. 475, and of the vicar cooperator of c. 476 will depend upon the amount of authority these have received from the local Ordinary, or the pastor, in general {Acta 1922, 527). C. 1096—A vicar cooperator of c. 476, if he has general dele­ gation to assist at marriages within the parish, can subdelegate any specified priest of his choice to assist at any specified marriage {Ada 1928, 61). The vicar cooperator can never assist at marriage in virtue of his office alone {Ada 1942, 50). C. 1096—In delegating a priest to take a specified marriage, the pastor can authorize the same priest to subdelegate any other priest of his choice to take the said marriage {Acta 1928, 62). C. 1096—Delegation for valid assistance is too vague if the pastor merely tells the superior of the neighboring religious house that he (the pastor) delegates that priest to take the marriage, booked for the coming Sunday, whom the superior will send to supply {Ada 1924, 115). C. 1098—Marriage before witnesses alone is not valid just because the pastor is absent hit et nunc. It must be foreseen that the pastor, moreover, will not be available for another month {Acta 1925, 538). C. 1098—Whether the inconvenience is on the part of the pastor or on the part of the nupturients is immaterial {Ada 1945, 149). C. 1098—Physical absense of the pastor is required to justify marriage before witnesses alone, and mere moral absence does not suffice. Still, if the pastor is physically present, but cannot assist because of some grave inconvenience, this still is considered physical absence {Acta 1928, 120; 1931, 388). 498 FORM OF MARRIAGE C. 1098—It does not suffice that the parties merely believe that the pastor will not be available for another month {Rota deci­ sions, vol. 18, p. 17). C. 1099, §2—Ab acatholies nati includes persons born also of mixed marriages, one parent being Catholic, even though marriage by them was contracted with the necessary dispensation {Acta 1929, 573). It includes persons born of apostate Catholics {Acta 1930, 195). The above first answer is declarative and retroactive {Acta 1931, 388). C. 1102—In mixed marriages not only is the Missa pro sponsis forbidden, but also any other Mass which, from circumstances, would incline one to the belief that the Mass is part of the marriage ceremony {Acta 1925, 583). Books of Special Reference Carberry, lohn D., The Juridical Form of Marriage, C. U. Press, 1934. Dillon, Robert E., Common Lazv Marriage, C. U. Press, 1942. Coburn, Vincent P., Marriage of Conscience, C. U. Press, 1944. Miklosovic, Paul J., Attempted Marriages and Their Conse­ quent Juridic Effects, C. U. Press, 1944. Dodwcll, Edward J., The Time and Place for the Celebration of Marriage, C. U. Press, 1942. Articles and Consultations The Tametsi Decree in the U. S., ER. 1926, Dec. 657; Jurist, 1943, Apr. 318-326. The Benedictine Declaration as it applied to the U. S., ER. 1927, Nov. 526-527. National parishes and assistance at marriage, ER. 1929, Jan. 88-94; HPR. 1941, Oct. 70. Marriage performed by a deacon, HPR. 1923, Apr. 731- 733. Parties object to witnesses at validation of marriage, invalid by reason of occult impediment. HPR. 1932, Mar. 636. Can the deaf witness a marriage? HPR. 1935, Apr. 744. Non-Catholic witnesses at Catholic marriage, ER. 1929, May 516; HPR. 1930, Aug. 1211-1212. Ecclesia supplet and marriage, ER. 1940, Nov. 474; HPR. 1932, Nov. 179; 1940, Nov. 166; Jurist, 1942. Apr. 170. FORM OF MARRIAGE 499 Dispensation from the canonical form in danger of death, HPR. 1921, Nov. 170. Discovery of concubinage at sick call, but quarantine forbids admission to witnesses, HPR. 1922, Oct. 13. A casus perplexus and the canonical form, ER. 1938, Aug. 174-177. Common law marriage between non-Catholics, ER. 1937, Feb. 182-188; ER. 1945, Mar. 227. A common law marriage, HPR. 1927, Jan. 416. Common law marriage and the Code, Jurist, 1942, July, 248-262. Pastor assists fictitiously to leave marriage invalid. HPR. Apr. 1929, 773-775. Aged pastor forgets to ask: “Do you take, etc.”, and couple later divorce and seek new alliances on that plea, CST. IV. 176. Delegation to take a marriage, HPR. 1920, Oct. 40-43; 1924. Aug. 1161-1164. Was delegation to assist only implied here? Jurist 1946, Oct. 525. Delegating all priests of nearby monastery to take a marriage, ER. 1936, Aug. 196 Must permission to assist be expressed? ER. 1939, Apr. 346349; HPR. 1924, Sept. 1285. The vicar substitute and marriage, ER. 1945, June 469-472. A case of delegation to assist at marriage, HPR. 1930, Aug. 1213-1215. Could jurisdiction for marriage be subdclcgatcd here? CST. Ill, 66. Pastor forbids assistant to subdelegatc marriage faculties at any time, HPR. 1929, Nov. 175. The law on licit assistance, ER. 1943, Feb. 116-125. Licit assistance'at marriage, ER. 1919, Oct. 449. Assisting at marriage without permission, ER. 1930, Nov. 525532. A case of both domicile and quasi-domicile, F.R. 1939, May, 441-443. Business place not a domicile, ER. 1940, Oct. 395. Acquiring domicile and quasi-domicile for marriage, CST. IV. 84. A case of quasi-domicile and assistance at marriage, HPR. 1921, July, 931-933. Domicile and place of work, HPR. 1930, April 750. Is this domicile and quasi-domicile? HPR. 1928, .Mar. 645. 500 FORM OF MARRIAGE Arc there two domiciles here? HPR. 1929, Dec. 296. Can groom’s pastor assist here? HPR. 1941, Apr. 745. Groom's pastor assists over objection of bride’s pastor, HPR. 1938, Jan. 413-414. Assisting at marriage of non-subjects, ER. 1931, Sept. 306-308. Performing marriage for two non-Catholics, ER. 1944, Oct. 308-310. Can a Latin pastor marry two Uniates? HPR. 1938, Sept. 1294-1296. Marriage ceremony between Catholics of mixed rite, ER. 1925, Sept. 311-314. Who judges if groom's pastor may take marriage? ER. 1920, June 691; Oct. 417-419. Case of moral impossibility to have a priest, ER. 1927, Oct. 424. Marriage without priest due to disturbed political conditions, HPR. 1920, Oct. 26. Marriage is contracted before witnesses only, without priest, CST. V. 287. Case of marriage before witnesses only due to civil law involve­ ments, HPR. 1926, May, 858-860. Prolonged absence of priest and canon 1098, HPR. 1927, Sept. 1317. Marriage before witnesses only, HPR. 1928, Sept. 1333. Can the priest advise a merely civil marriage? HPR. 1930, Nov. 187-189. Is a civil marriage permitted for civil law effects only? HPR. 1942, July 952. Was the Roumanian bound bv the canonical form? ER. 1928, Nov. 539-541. If they marry inter sc persons baptized in the Catholic religion but not raised Catholics arc not held to the canonical form, ER. 1930, May, 507. Born of Catholic parents, baptized a Catholic, but after five years raised a non-Catholic, ER. 1940, Sept. 283-286. Baptized Catholic, raised non-Catholic, and held to canonical form, ER. 1943, Dec. 453-456. Those Orientals who arc held to no canonical form can validly marry persons born as Catholics and raised as non-Catholics, Jurist, 1942, Oct. 399. Discussion of the ab acatholicis nati declaration, ER. 1931, Dec. 637-638. Do declarations concerning ab acathoiics nati apply to pre-Code marriages? ER. 1936, Feb. 188-189. FORM OF MARRIAGE 501 Baptized a Catholic, raised a non-Catholic, marries an infidel, is divorced, and desires marriage with a Catholic, HPR. 1934, Oct. 82. Children of apostate Catholics and the marriage form, ER. 1931, May 522-524. What is meant here by apostacy? ER. 1936, June 630-633. Various suppositions of children born of Catholics and not held to the canonical form, HPR. 1932, May 852-856. Is nuptial Mass obligatory? ER. 1923, Feb. 192. Closed seasons and the nuptial Mass, ER. 1925, Apr. 415; 1924, Aug. 195; HPR. 1923, Feb. 523; 1926, Mar. 632; 1926, May 850. Solemn Mass at wedding during closed seasons, ER. 1925, Dec. 633. What solemnities are forbidden during closed seasons? HPR. 1924, Apr. 671. Nuptial blessing outside of Mass, ER. 1929, Mar. 310. Nuptial blessing apart from wedding, HPR. 1935, Nov. 185. How to give nuptial blessing, CST. IV, 105. The double ring ceremony, ER. 1944, Oct. 311. Nuptial jubilee, how celebrated, ER. 1922, May 524; HPR. 1926, Mar. 634. Cassock can be worn at mixed marriages, IIPR. 1921, Aug. 1054. Can marriage be celebrated at Benediction? HPR. 1935, Sept. 1308. Performing marriage at rail outside of Mass, ER. 1937, Apr. 422. Mixed marriage in church, ER. 1925. Dec. 623-624. Marriage in convent school chapel, HPR. 1920, Dec. 203-204. Can bishop permit mixed marriages outside of rectory? HPR. 1941, June 938. Who enters the marriage record? ER. 1926, Oct. 434. ART. VII Separation of the Spouses We shall first consider separation, or divorce, from the bond; and then separation from bed and board. 502 SEPARATION OF THE SPOUSES §1. Separation from the Bond Not every marriage, though valid, enjoys the same degree of indissolubility. From this viewpoint we may distinguish: (1) sacra­ mental consummated marriages; (2) unconsummated marriages; (3) consummated non-sacramental marriages. A. Sacramental Consummated Marriages A sacramental marriage (between two baptized persons), once consummated, cannot be dissolved except by death (cfr. c. 1118). Every other marriage admits of dissolution for reasons other than death of the spouse, as we shall sec. Proof of the absolute indissolu­ bility of a sacramental consummated marriage, as based upon divine law, must be left to manuals of dogmatic theology. B. Unconsummated Marriages A marriage between two baptized persons, or between a bap­ tized and an unbaptized person, is dissolved by law through solemn religious profession, although an Apostolic induit is required for a married person to enter a religion during the lifetime of his spouse (cfr. c. 542, n. 1). But the more frequent way in which a marriage as just described is dissolved, is by Apostolic dispensation granted for a just cause at the request of both parties, or of one party only, even though the other be opposed to the dispensation (c. 1119). Whether the dissolving power is attached to solemn vows by divine or ecclesiastical law is disputed. By what authority the Pope can dissolve an unconsummated marriage is explained on p. 630. As to the procedure followed before a dispensation is granted from the bonds of a matrimnnium ratum et non-con$ummatum, cfr. p. 628. C. Consummated Non-Sacramental Marriages A non-sacramental marriage is one which exists between two unbaptized persons, or between a baptized and an unbaptized person. If both parties are unbaptized, the marriage, even though consum­ mated, can be dissolved in virtue of the Pauline Privilege. If one party is unbaptized and the other is a baptized non-Catholic, and one party becomes a Catholic, the marriage can be dissolved in favor of the faith by vicarious power of the Sovereign Pontiff. We shall consider each of these cases separately. Pauline Privilege—In his first epistle to the Corinthians (V’lI, 12-15) St. Paul writes: “If any brother hath a wife that believeth not, and she consent to dwell with him, let him not put her away. SEPARATION OF THE SPOUSES 503 And if any woman hath a husband that believeth not, and he consent to dwell with her, let her not put away her husband. . . . But if the unbeliever depart, let him depart. For a brother or sister is not under servitude in such cases.” By brother and sister St. Paul means a Christian man and woman, those who have received baptism. But he intends converts alone, as the Church through her practise teaches. St. Paul means to say that if marriage was contracted by two unbaptized persons (unbelievers), and one of them is now converted to the Christian faith (brother, sister), and the unbaptized consort consents to live with the convert without molestation to his or her new faith, the convert should continue to live with him. But if the unbaptized party departs, i. c., cither by physical desertion, or morally by making the practise of the faith difficult for the convert, the latter may also depart, i. c., enter upon a new marriage with a Christian. Hence, the Pauline Privilege is simply the right of a convert, man or woman, to contract a new marriage should the unbaptized consort to whom the convert was married in infidelity, i. e., while yet unbaptized, refuse to be baptized likewise, or at least to live peacefully with the convert. The dissolution of the first marriage contracted in infidelity, even though consummated, is dissolved at the moment the convert contracts a new marriage (c. 1120, §1; 1126). Before the Pauline Privilege can be applied the following conditions must have been verified: (1) the first marriage must have been contracted in infidelity, i. c., between two unbaptized persons; (2) one party must have embraced the faith through baptism, the other still remaining unbaptized; (3) the unbaptized person must have departed, either physically, c. g., bj' divorce or desertion, or morally, e. g., by making common life unbearable by reason of a quarrelsome disposition, opposition to the baptism and Catholic education of the children, insistence on onanistic practises, etc., in a word by any mode of life which endangers the faith or morals of the convert and makes the practise of his new religion difficult; (4) the departure of the infidel must be verified by means of interpellations. The interpellations are two questions proposed to the unbap­ tized consort: 1) whether he also is willing to receive baptism; and if not 2) whether at least he is willing to leave the convert un­ disturbed in the practice of the Christian faith. If the unbaptized consort has already physically departed, c. g., by reason of divorce, the second question should be whether he is willing to return and live peacefully, etc. (cfr. c. 1121, §1). 504 SEPARATION OF THE SPOUSES The interpellations must always be made, no matter how evident it may be that the infidel has departed, unless the Holy See dispenses (c. 1121, §2). The local Ordinaries of the United States have no faculties to dispense in these cases by law. If the interpellations were dispensed with by the authority of the Holy See, or if they were made and a negative (even silent) answer was given to them, the convert may enter upon a new marriage (c. 1123). If the convert after baptism continues to live with the infidel, he does not thereby forfeit his right later on to resort to the Pauline Privilege if circumstances warrant (c. 1124). In cases of doubt the privilege of the faith enjoys the favor of the law (c. 1127). Thus, if it is doubted whether the first marriage was invalid, it may be presumed invalid; whether the interpellations were properly made and reached the infidel, they may be presumed as having been properly made, etc. But if two doubt­ fully baptized non-Catholics contracted marriage, and one joins the Church and is baptized and wishes to use the Pauline Privilege, this cannot be done for fear that the first marriage may have been sacramental and consummated. And if of two non-Catholics one was certainly unbaptized and the other doubtfully baptized, the convert cannot be permitted the use of the Pauline Privilege, but recourse must be had to the Holv Office in each case (H. Off. June 10, 1937; Jeta XXIX, 305). Concerning the method of procedure in Pauline Privilege cases, cfr. p. 628. Dissolution by vicarious authority of the Sovereign Pontiff— Marriage between two persons, one of whom is baptized and the other unbaptized, cannot be dissolved in virtue of the Pauline Privilege. But if either party embraces the Catholic faith, and if the bond of the first marriage would make the practice of the faith diffi­ cult for the convert, e. g., if they are divorced civilly and the convert because of youthful age finds it hard to lead a continent life, the first marriage, even though consummated, can be dissolved by the Roman Pontiff in virtue of his authority as vicar of Christ upon earth, i. c.. by the same authority by which he dissolves unconsum­ mated marriages, an authority conferred upon the Pope through St. Peter to whom it was said: Quidquid solveris super terram erit solutum et in coelis. This loosing power must be understood as extend­ ing not only to sins but to anything that would obstruct salvation, even to the bond of marriage. But ratum et consummatum marriages are expressly excepted, for if to any marriage, then certainly to such SEPARATION OF THE SPOUSES 505 marriages do the words of Christ apply: “What God hath joined together, let no man put asunder." Concerning the procedure to be observed in requesting a papal dissolution of the marriage under consideration, cfr. p. 630. D. Declaration of Nullity Dissolution of the marriage bond supposes that a valid marriage existed, otherwise there is no bond present to be dissolved. Hence if the parties contracted an invalid marriage, and after obtaining a civil divorce, either or both desire to enter upon a new marriage in the Church, the case calls for a declaration of nullity, not for a dissolution. Sometimes a formal marriage trial is required, especially in defective consent cases, and impotency cases; at other times a summary process as described on p. 626 generally suffices. It should be repeated that no priest may assist at the marriage of divorced persons without first submitting the first marriage of these parties to the bishop, or the diocesan court, for a declaration of nullity, or for an authoritative dissolution. And if neither a declara­ tion of nullity nor a dissolution is possible, the divorced persons cannot enter upon a new marriage in conscience, and in the Church. §2. Separation from Bed and Board By limited divorce, as distinct from absolute divorce, we under­ stand the separation of the spouses not from the bonds of their marriage, but from bed, board and common habitation. Such divorce does not permit the parties to contract a new marriage. One of the obligations inherent in the marriage contract is common habitation, this being essential to the exercise of marital rights, or the jus copulandi. But a just cause will permit separation from bed, board and habitation. As a rule it is not for the parties, but for the bishop, to judge concerning the sufficiency of the cause which justifies sepa­ ration. A summary extrajudicial decision suffices (Code Comm., June 25, 1932; Acta XXIV, 284). Not even the confessor can pass judgment which will excuse the parties in the external forum, if the separation would cause general talk and scandal. Such scandal is not present, or at least it is not justifiable scandal, if the cause of the separation is both serious and publicly known, and if it is known that the bishop has authorized the separation. Canon 1129 considers adultery as justifying permanent sepa­ ration for the innocent spouse. Causes which justify temporary 506 SEPARATION OF THE SPOUSES separation, i. e., as long as the cause lasts, are, c. g., if one spouse joins a non-Catholic sect; educates the children as non-Catholics ; leads a criminal and ignominious life; endangers the life of the other, or tempts the other repeatedly to sin, c. g., by birth control practises; renders common life a hardship by constant quarrels, etc. (c. 1131, §1). While, if there is danger in delay, the innocent spouse may usually leave on his own accord without waiting for episcopal approval, yet if the separation is to continue for any length of time, and especially if a civil divorce is to be sought to safeguard the temporal goods of the innocent party, the right to alimony, etc., the bishop must be consulted. In man}· dioceses it is a reserved sin by local law for Catholics to sue for a civil divorce without previous permission of the bishop. Canon 1132 rules that the children should be given to the innocent spouse in case of separation, unless the Ordinary judges otherwise for the good of the children, e. g., if the innocent party is a non-Catholic. But in practise it will be the civil court which will arrogate to itself this right to decide who shall have the children, a right which belongs to the ecclesiastical prelates, but which is not recognized where separation of Church and State prevails, as with us. Books of Special Reference Gregory, Donald J., The Pauline Privilege, C. U. Press, 1931. Woeber, Edward M., The Interpellations, C. U. Press, 1942. Burton, Francis J., A Commentary on Canon 112$, C. U. Press, 1940. Woods, Francis, The Constitutions of Canon ii2$, Milwaukee: Bruce, 1935. Kearney, Francis P., The Principles of Canon 1127, C. U. Press, 1942. Articles and Consultations Λ ratum et non-consummatum case, CST. I, 155. The marriages of infidels and their annullability, ER. 1918, Mar. 318-320. One turns Catholic, the other becomes a Protestant—is Pauline Privilege applicable? HPR. 1934, Oct. 80. SEPARATION OF THE SPOUSES 507 Three cases of the Pauline Privilege, ER. 1925, 301-304. Should Pauline Privilege or disparity of cult apply? ER. 1927, fan. 44-52; Feb. 210; Mar. 322; May 543; June 656-659; HPR. *1925, Nov. 188; Dec. 403; 1928, Dec. 303. Insincere conversion and the Pauline Privilege, HPR. 1929, Oct. 66; ER. 1929, Sept. Pauline Privilege docs not apply here, HPR. 1922, Mar. 642644. Where the Pauline Privilege applied, HPR 1922, May 903-905. Dispensing from interpellations, HPR. 1921, Aug. 1055; 1933, May 852. Can Ordinaries dispense from interpellations? ER. 1932, May 533-537; 1934, Nov. 503-506. Can pastors dispense from interpellations? HPR. 1934, Sept. 1312-1315. Malicious refusal to be interpellated, HPR. 1928, May 881. Interpellations by telephone, HPR. 1932, July 1080. The logic of interpellations, ER. 1946, July 24-36. Confessor cannot apply Pauline Privilege to dying penitent, HPR. 1933, May 852.' The original Helena Case, ER. 1925, Feb. 186-188; Apr. 405-409. Dissolution of legitimate marriage by papal authority, Jurist, 1942, Apr. 134-144. Theory or philosophy of in favorem fidci dissolutions, ER. 1924, Jan. 59-66; 1925, June 622-628; Jurist, 1942, Apr. 134-144. The declaration on c. 1127 and its interpretation, ER. 1937 Oct. 366-372. A dissolution in favorem fidei, HPR. 1932, Nov. 187-189. Procedure in submitting privilege of the faith cases, HPR. 1939, Mar. 619-621; Oct. 39-51. Bishop’s permission required to sue for civil divorce, ER. 1938, Apr. 372; HPR. 1938, Jan. 411, July 1071; 1931, July 1101-1104. Procedure in separation suits, HPR. 1929, Jan. 407. Status of one who sues for civil divorce without bishop’s per­ mission, ER. 1941, Nov. 410-412; HPR. 1927, June 992. Can spouses, who have separated without bishop’s permission, approach sacraments? CS T. IV’. 140. Civil divorce and episcopal permission, ER. 1946, Nov. 388. 508 VALIDATION OF MARRIAGE ART. VIII Validation of Marriage. An invalid marriage may be validated in either one of two ways ; 1 ) by having the parties renew marital consent, and this we call simple validation; or 2) by dispensing the spouses from the obliga­ tion of renewing consent in the canonical form, i. c., before the priest and two witnesses, and then we have a sanatio in radice. §1. Simple Validation The rule is that marriage must be validated by means of simple validation. The sanatio in radice is an extraordinary method, and should not be resorted to except in cases of necessity. In other words, the parties should ordinarily be prevailed upon to renew their consent in canonical form after the impediment has ceased of its own accord (age, disparity of cult, etc.), or after a dispensation has been obtained from the invalidating impediment (c. 1133, §1). Some­ times, however, there is no impediment and a dispensation is not needed, e. g., if the marriage was merely contracted in the beginning before a justice of the peace, i. e., in disregard of the canonical form. Then the parties need but renew consent in canonical form. We said the consent should be renewed in canonical form, i. e., before an authorized priest and two witnesses. However, not even this is required in all cases, although in all cases consent must be renewed. In other words, the manner of renewing consent will differ according to whether the marriage was rendered invalid due to: 1) the disregard of the canonical .form (civil marriages); or 2) defective consent; or 3) an invalidating impediment. If the canonical form was neglected, e.g., in a civil marriage, the parties must renew consent before an authorized priest and two witnesses (c. 1137). It is not necessary that a church ceremony be gone through, but the marriage can take place privately, if there is danger of scandal, e.g., in the sacristy, priest’s parlor, etc. If marriage was invalidated by reason of vitiated consent, e.g.. because of a condition opposed to the substance of marriage, and it is publicly known that such pre-marital pact was entered into, or that at least one party so conditioned his consent, the parties must renew consent before an authorized priest and two witnesses. If the defective consent cannot be proved in the external forum, e.g., by an authentic document or by two witnesses other than the VALIDATION OF MARRIAGE 509 parties, it suffices that the party or parties externally between them­ selves alone renew consent. And if only one party gave vitiated consent and is aware thereof, the confessor may tell him here and now to renew consent inwardly and coram Deo without the need of manifesting his lack of consent to his partner. Since these occult cases cannot be proved, the Church is not concerned about them in the external forum, nor could she declare the marriage invalid. And so, since the parties cannot be allowed a divorce on such grounds they may as well live rightly in a valid marriage and renew consent privately (cfr. c. 1136). If the marriage was invalid due to an impediment which is now discovered (a relatively rare case), the consent must be renewed before an authorized priest and two witnesses if the impediment is public by its nature (can be proved). Otherwise the parties exchange consent between themselves alone. If the impediment is, or was, known to only one party, e. g., one learns from the confessor that his pre-marital adultery invalidated his marriage, only the party aware of the impediment need renew consent inwardly (c. 1135). §2. Sanatio in Radice 'I'he law which requires the parties to an invalid marriage to renew consent before the authorized priest and two witnesses is a ruling of positive ecclesiastical law only. Hence, the Church can dispense with this ruling, or obligation of renewing consent, if circumstances so warrant in some particular case, and such dispensa­ tion is called a sanatio in radice, i. e., the marriage is healed (validated) in its root (consent). The Church does not supply consent ; she simply gives authoritative recognition to a consent already elicited. If a diriment impediment stands in the way, c. g., disparity of cult, this must be first removed, or it must have ceased of itself, e. g., age. If removed by a dispensation, as generally hap­ pens, the bishop in granting the sanatio in radice actually grants a two-fold dispensation: one from the diriment impediment, the other from the law requiring renewal of consent in the canonical form (cfr. c. 1138). Since there is question of dispensing from a law whenever a sanatio in radice is granted, namely, from the law requiring renewal of consent in the legitimate form, a sanatio in radice will not be granted save for a just cause. Thus, it may happen that the mar­ riage was invalid through the fault of the priest, he having no juris­ diction to witness the marriage, and it would be embarrassing to inform the parties thereof. Or, as most frequently happens, a SIO VALIDATION OF MARRIAGE Catholic contracts a civil marriage with a non-Catholic, and later, repenting, wishes to have the marriage rectified, but the non-Catholic cannot be prevailed upon to renew consent in the Catholic form, being persuaded that one marriage ceremony suffices. The Church does not grant a sanatio in radice if marriage was contracted with an impediment of divine law, even though the impediment has now ceased. This is a mere ecclesiastical ruling (cfr. Veremeersch-Creusen, o.c., II, n. 457). And so, if a divorced Catholic contracted a civil marriage during the lifetime of his former spouse, and the latter dies, the second marriage must be validated by renewing consent before an authorized priest and two witnesses (c. 1139). Neither does the Church grant a sanatio in radice in the case of a marriage invalid by reason of deficient consent. This is divine law, since no human authority can supply marriage consent other than the parties. If the defect in consent was public, the marriage must be gone through again before an authorized priest and two witnesses. If the defect was occult in the sense that it cannot be juridically proven in the external forum, consent must be renewed at least privately between the parties if known to both, or by one party only inwardly if he alone is aware of his deficient consent (c. 1140). Only the Holy See can grant the sanatio in radice, i. e., such dispensations the Pope reserves to himself. But the local Ordinaries of the United States have quinquennial faculties to grant the sanatio in radice in cases of mixed marriages, and from impediments of minor degree (cfr. p. 726, 728). It should be noted that the parties need not be told of the sanatio having been granted (c. 1138, §3). But the one who is aware of the impediment should be informed that the marriage was validated in this way, otherwise he may later attempt to seek a declaration of nullity. Likewise to frustrate this attempt, the sanatio must be duly recorded in the books of the chancery, and a note thereof sent by the chancery to the pastor of the parish where the party or parties were baptized, so that it may be recorded in the baptismal register on the margin of the page where the names appear. Absence of such marginal note is evidence that a civil marriage was not validated in this form; and if, moreover, the ordinary marriage celebration note is not found in the margin which would have been entered had the marriage been validated in the ordinary manner, parties married civilly may obtain a declaration of nullity to permit them to contract a new marriage. Finally, let it be remarked that while a sanatio in radice produces no effect if the consent originally given to the marriage has been VALIDATION OF MARRIAGE 511 recalled, yet the party conscious of the invalidity of the marriage need not question the other consort unaware of the invalidity whether his consent perseveres. The law presumes that marital consent, once given, continues until there is certain proof present that it has ceased (c. 1093). Hence, if the parties are not separated, this is sufficient presumption that consent perseveres, and the sanatio may be granted. But in some cases it may be better for the confessor or priest to advise a penitent to seek a declaration of nullity, rather than ask for a validation of his marriage, especially if there are no children, and the present union is an unhappy one. Books of Special Reference Brennan, James H., The Simple Convalidation of Marriage, C. U. Press, 1937. Harrigan, Robert J., The Radical Sanation of Invalid Mar­ riages, C. U. Press, 1938. Articles and Consultations Does any form of renewal of consent suffice for validation? 11 PR. 1928, May 879. Remarriage of validly married Catholics after civil divorce and reconciliation, ER. 1924, Nov. 523. Must two converts renew marriage consent if their first and only marriage was valid? ER. 1927, Feb. 207-208. Validating a convert’s prc-Code marriage which was invalid by reason of disparity of cult, ER. 1936, July 91-96. Procedure in validating the marriage of a dving person. ER. 1942, Aug. 134-138. Insincere convert requests baptism on death bed; must mar­ riage consent be renewed? HPR. 1935, June 969. Discovers an invalid marriage before an operation. HPR. 1920, Oct. 38. Valid in canon law, invalid in civil law because annulled at request of minor’s parents. Quid faciendum? HPR. 1934, Feb. 516. Cohabitation as brother and sister. ER. 1938, Oct. 319-337; HPR. 1926, July 1075; 1935, May 852; 1937, Sept. 1305. Is sanation possible between two Catholics? HPR. 1931, July 1095-1097. 512 VALIDATION OF MARRIAGE Sanation of mixed marriages without the promises, IIPR. 1920, Nov. 131-132; 1924, Apr. 742; 1928, Aug. 1217; 1928 Oct. 80-82. Procedure to obtain a sanation in mixed marriages, ER. 1932, July, 73-76. Refusal of a sanatio, HPR, 1926, Mar. 633. The correct use of the sanatio, HPR. 1932, Aug. 1135-1142; Dec. 291. Is a sanatio possible after separation and reconciliation? Jurist, 1942, Apr. 165. Validating a convert’s marriage without renewal of consent. Jurist, 1944, Jan. 142-150. Sanation obtained for, and later refused by the petitioner—was the marriage validated? HPR. 1924, July 1066. Sanation because marriage invalid through priest’s fault, HPR. 1929, Nov. 169. Why is a marriage contracted with an impediment of divine law, if the impediment has now ceased, excluded from the benefit of a sanation? ER. 1919, Sept. 324-326. APPENDIX The Sacramentals General notions—Sacramentals are things or actions which the Church has instituted in imitation of the sacraments to produce chiefly spiritual effects (c. 1144). They should not be confused with sacraments ; the latter are of divine institution, the former of ecclesiastical origin ; the latter pro­ duce grace ex opere operato, the former ex opere operantis (praesertim operante Ecclesia). The Church merely begs God through her ministers to bestow favors on the recipient or user of the sacramen­ tal, her prayers being more efficacious (not necessarily infallible) than the prayers of a private member of the Church. Nor should sacramentals be confused with indulgences. An indulgence is the remission of temporal punishment due after the guilt of sin, i.e., its punishment in the next world, has been condoned. The spiritual effects of a sacramental may indeed include the effects of an indulgence by the will of God in some particular case, but the remission of temporal punishment is not an essential effect of a sacramental. We can have articles to which both in- SACRAMENTALS 513 dulgences and sacramentals attach, e.g., a blessed rosary to which an indulgence was attached by the sign of the cross. On the other hand we can have an indulgence alone, e.g., in the case of an indulgcnccd visit to a church, or we can have a sacramental alone, e.g., a blessing imparted to a rosary by a priest not empowered to affix indulgences. Kinds of sacramentals—Most sacramentals are either conse­ crations or blessings. Otherwise, which actions and things can be listed as sacramentals is much disputed among the writers due to the absence of a uniform definition of a sacramental save in generic terms. Authors usually add to blessings and consecrations, the public prayers of the Church, almsgiving, the recitation of the coniiteor, and the sign of the cross. Consecrations and blessings arc cither constitutive or invocative, depending upon whether according to the usage of the Church the thing consecrated or blessed is set aside permanently for sacred purposes, e.g., consecrated oils, blessed candles, holy water, etc., or not, e.g., the blessing of a private home, of fruit, etc. The former should not be applied to profane uses (c. 1150), e.g., should not be used to bathe with, nor blessed candles lighted to study by. Sacramentals, we said, arc cither things or actions; thus, those things which receive a constitutive consecration or blessing constitute the permanent sacramental, God’s blessing remaining with the re­ tainer or user thereof; while in the case of things consecrated or blessed with an invocative blessing, the sacramental mostly consists in the transient action, i.e., the consecration or blessing. Minister of sacramentals—Bishops arc the ordinary ministers of consecrations (blessings with the use of oil), although sonic clerics by law and others by induit may consecrate. As to blessings (usually prayers accompanied by the use of holy water, although the mere sign of the cross is a blessing and sacramental), some arc reserved to bishops, others to pastors, others to religious, as may be seen in the Ritual. One who without permission imparts a reserved bless­ ing, however, confers a valid blessing (c. 1147). Formalities to be observed-—If a special formula is prescribed for a blessing, it must be observed under pain of invalidity of the sacramental (c. 1148, §2). The use of holy water, when pre­ scribed, must be considered part of the formula (VermcerschCreusen, o.c., II, n. 468). The use of stoic and surplice, when prescribed, is not ad validitatem. Beneficiaries of sacramentals—With the exception of those upon whom excommunication has been pronounced, all persons may re- 514 SACRAMENTALS ccivc the sacramcntals, including non-Catholics (c. 1149). Hence, it is allowed, e.g., to bless the homes and children of non-Catholics. Catechumens may be admitted to the public reception of the candles, ashes and palms (S. C. Rites, Mar. 8, 1919; Acta XI, 144). This is forbidden in the case of other non-Catholics ( Vcrmeersch-Crcusen, o.c., II, n. 577). Exorcisms—Lest ridicule result therefrom in this critical age, no priest may pronounce exorcisms over one supposedly possessed by the devil without previous permission of his Ordinary (c. 1151, §1). The exorcisms which occur in baptism are excepted (c. 1153). Chapter IX SACRED PLACES Preliminary Remarks Sacred places are those which have been set aside for divine worship or the burial of the faithful by’ means of consecration or blessing performed in accordance with the rules found in the approved liturgical books (c. 1154). Consecration consists of prayers and the anointing with oil ; blessing consists of prayers and aspersion with holy water. It is the right of the local Ordinary, provided he is a bishop, to consecrate all places in his territory, even places belonging to exempt religious. If the local Ordinary is not a bishop, he alone may invite any bishop of his rite to consecrate places in his territory (c. 1155). The right to bless places pertains to the major superior if the place belongs to an exempt clerical religion. Both the local Ordinary and the superior may delegate another priest to perform the blessing reserved to themselves (c. 1156). Sacred places arc of four kinds: 1) churches; 2) oratories; 3) altars; 4) cemeteries. To the first three we shall devote a separate article in this chapter, reserving for the following chapter our treatment of cemeteries. ART. I Churches We shall consider: 1) the definition and various divisions of churches; 2) the construction of churches; 3) the consecration and blessing of a church ; 4) the maintenance and repair of churches. §1. Church Defined and Classified A church is a sacred edifice dedicated to divine worship, and intended primarily for the use of all the faithful (c. 1161). Church515 516 SACRED PLACES es differ from oratories not by reason of material size, but rather the distinction is purely juridical, namely, if the sacred edifice is not intended primarily for the use of all the faithful without dis­ tinction, it is an oratory or chapel ; otherwise it is a church. Both churches and chapels agree in this that they are dedicated to divine cult. In respect to their rights and privileges churches arc divided as follows: 1) a cathedral church is one in which the bishop has his cathedra or chair, where synods and general ordinations are held, and the blessing of the oils on Holy Thursday is performed ; 2) a parochial or parish church is one in which parish functions, e.g., solemn baptisms, marriages, etc., can be performed; 3) col­ legiate and conventual churches are those in which the Eucharist can be reserved ipso jure, the former being entrusted to a chapter of secular canons, the latter to a religious organization; 4) a basilica is a church which enjoys this title by Apostolic induit or immemorial custom. Λ note may be added concerning basilicas. Basilicas arc either major or minor basilicas. There are only six major basilicas. Four of these are at Rome: St. John Lateran, St. Peter’s, St. Mary Major, and St. Paul outside the Walls. The other two are found in the town of Assissi: one is the church of St. Francis, the other is the church of St. Mary of the Angels. A number of minor basilicas arc found in various parts of the world, their privileges in general being: that in processions they may use a special canopy in the shape of an umbrella, a specially constructed bell which heads a procession, and special robes for the clergy of the church. §2. Construction of Churches No church, whether regular or secular, may be built without written permission of the local Ordinary. This permission should not be granted save under the following conditions: 1) that suffi­ cient funds are at hand or can be expected, for the construction and upkeep of the church and for the maintenance of the clergy; 2) that the new church will not prove detrimental to the neighboring churches, and to this end the local Ordinary should seek the advice of the rectors of those churches; 3) that the plans arc in harmony with the traditional rules of Christian architecture, and to this end the local Ordinary may inspect the plans (c. 1162; 1164, §1). SACRED PLACES 517 §3. Consecration and Blessing of Churches Necessity of consecration or blessing—Neither Mass nor any other sacred functions are permitted in a church before it is conse­ crated or at least blessed (c. 1165, §1). Churches constructed of wood can be blessed but not consecrated (c. 1165. §4). Consecration is obligatory for all cathedral churches. It is desired that all collegiate, conventual and parochial churches be likewise consecrated (c. 1165, §3). When a church is consecrated at least one altar of the church must also be consecrated, namely, the high altar, unless this has already been consecrated (c. 1165, $5). Together with consecration or blessing a church must be given a title. The titular feast must be celebrated annually according to the rules of sacred liturgy. Also the anniversary of the consecra­ tion must be observed (c. 1167, 1168). Loss of consecration and blessing—A church which has lost its consecration or blessing must be reconciled before divine services can be resumed therein. But here we must distinguish between the execration of a church and its violation. A church is execrated: 1) if it is entirely destroyed; 2) if the greater part of its walls collapses; 3) if by the Ordinary’s decree it has been turned over to profane uses (c. 1170). In such cases the church loses its consecration or blessing and must be reconciled by being consecrated or blessed anew to be a sacred place. The violation of a church imports the contamination, not the loss, of its consecration or blessing. A church is violated by any one of the following acts: 1) by the crime of homicide; 2) by an injurious and serious spilling of human blood; 3) by addiction to ungodly and sordid acts; 4) by interment within the church of an infidel (unbaptized person), or of a person upon whom sentence of excommunication lias been passed. The last supposition is hardly verifiable at the present day when only bishops and cardinals are interred within the church, although we can imagine a patron en­ joying the privilege of such burial. The above acts which violate a church must be certain, notorious, and placed within the church edifice itself (c. 1172). A blessed church which has been violated is reconciled with common holy water according to the formula found in the ritual. A consecrated church which has been violated is reconciled by the use of specially blessed water and special prayers as contained in the Roman Pontifical (c. 1177). A blessed church which has been violated can be reconciled by 518 SACRED PLACES the rector of the church, or by any other priest with at least the lawfully presumed consent of the rector. A consecrated church which has been violated may be reconciled by the local Ordinary or his delegate; and if the church belongs to an exempt clerical reli­ gion, by the superior or his delegate. In case of grave and urgent necessity, the rector himself may reconcile a consecrated church, supposing the Ordinary cannot be reached, but he must later inform the Ordinary of his action (c. 1176). §4. Maintenance and Repair of Churches The Code contains a number of rules under this head (c. 11821186) which find little application to conditions in this country. By common law the maintenance and repair of the cathedral church devolve upon the following in the order named : 1 ) the tem­ poral goods of the cathedral (bona fabricae) ; 2) the salary of the bishop and cathedral canons; 3) the faithful of the diocese. In the case of parish churches the following are taxed in the order named: 1) the goods of the parish; 2) the patron; 3) those who derive an income from the parish; 4) the parishioners (c. 1186). Canon 1186 allows local law and custom and the founda­ tion law of the church, if there are any, to modify the rules just stated. In the U. S. the cathedral church, once it is built, usually through a drive on a diocesan scale, is cared for by the parishioners of the cathedral parish. In the case of other parishes, the church, pastor’s residence, school, etc., arc constructed and maintained in repair, and the running expenses arc met by the free-will offerings of the parishioners in the form, c.g., of ordinary collections, pew rent, subscriptions, bazaars, etc. It belongs to the pastor to administer the temporalities of the parish church, and he must give a yearly account of such adminis­ tration to the local Ordinary (c. 1182, §3; 1525). ART. II Oratories We shall consider: 1) the nature and various kinds of ora­ tories; 2) the rights attaching to different kinds of oratories. §1. Nature and Kinds of Oratories An oratory (from oratorium, a place of prayer) is a sacred edifice destined for divine worship, but not intended primarily for SACRED PLACES 519 the use of all the faithful indiscriminately, as is the case with a church (c. 1188, §1). An oratory, called also a chapel, is con­ structed either for the use of an individual, or a group of indi­ viduals. This gives rise to various kinds of oratories. There arc three kinds of oratories: public, semi-public and private oratories. A public oratory is one which all the faithful arc allowed to enter at the time of services, even though the chapel was built originally only for the convenience of an individual or a group of individuals. There are few oratories in this sense. A semi-public orator)' and a private oratory both differ from the public oratory in that the faithful can claim no right of access at any time to them, even though they are permitted at times to enter by those in charge of the oratory. As between themselves: a semi­ public oratory is one which has been erected for the convenience of a community or group ; a private oratory is one which has been erected for the convenience of an individual family or person (c. 1188, §2, η. 1, 2, 3). To the class of semi-public chapels belong oratories in semi­ naries, colleges, religious houses, retreat houses, boarding schools, hospitals, orphanages, hospices, garrisons, prisons and ships. §2. Rights of Oratories Rights of public oratories—Public oratories are governed by the same law as churches. Therefore, provided it has been conse­ crated or at least blessed, all sacred functions may be performed in a public orator}’, saving the exceptions established by the rubrics. Thus, e.g., the functions of Holy Week may not be conducted therein (c. 1191). Rights of semi-public oratories—In these chapels all sacred functions may likewise he permitted saving the exceptions of the rubrics, or the special prohibitions of the Ordinary (c. 1193). But by their quinquennial faculties our local Ordinaries may permit Mass on Holy Thursday in semi-public oratories even though it be not a solemn Mass. The local Ordinary may forbid services in the chapels of religious at an hour which interferes with the service.; in the parish, unless the religious arc content to close the chapel to out­ siders altogether at such times (c. 609, §3). It should be noted that solemn baptism may not be conferred in semi-public oratories (c. 773); all other sacraments may be administered, safeguarding the rights of pastors, and excepting certain chapels for marriage. Sacred functions cannot be held in semi-public oratories unless they have been erected with the consent of the competent 520 SACRED PLACES Ordinary (c. 1193). But semi-public chapels neither need be conse­ crated nor blessed (c. 1196. §2). If consecrated or solemnly blessed, the feast of the titular should be observed, and the anniversary of the consecration. If blessed in a simple manner as a house, these rules do not apply. Rights o/ private oratories—We must distinguish between com­ mon and privileged private oratories. A privileged private oratory is one in which by induit of the Holy Sec Mass may be said daily, saving certain more solemn feast days as specified in the induit. On holydays of obligation, more­ over, the obligation of hearing Mass may be satisfied therein by the indultarius, his family and near relatives, as specified in the induit (c. 1195). A privileged oratory must not be confused with the privilege of a portable altar described in c. 822, to be considered presently. Aside from Apostolic induit anyone may set apart a room in his home for prayer (common private oratory). But Mass may not be said there save by permission of the Ordinary in some extraor­ dinary circumstances (c. 1196). The chapels of cardinals and bishops arc privileged private ora­ tories but enjoy all the rights of semi-public chapels (c. 1189). ART. Ill Altars Mass may not be said save on a consecrated altar (c. 822, §1). There are two kinds of altars in the liturgical sense: movable and immovable altars. By an immovable altar is meant the entire upper slab of the altar together with the supports upon which it rests and to which it is permanently fixed (cemented), and which has been consecrated at one and the same time with the supports. By a movable altar (called also portable altar) is meant the small altar stone, approximate!}· a foot square, on which the chalice rests during Mass. Likewise, the entire upper slab must be considered a movable altar if it was not consecrated simultaneously with its supports (c. 1197, §1). In a consecrated church at least one altar must be an immovable altar. In a blessed church all the altars may be movable (c. 1197, §2). Both the immovable and the movable altar must consist of one, unbroken, natural and non-friable stone. Each must contain in SACRED PLACES 521 its sepulchre relics of the saints. This sepulchre thereafter is closed by a small stone and cemented (c. 1198). Any bishop may lawfully consecrate movable altars (altar stones), but only the local bishop, or a bishop invited by the local Ordinary, may consecrate an immovable altar (c. 1199, §2). An altar loses its consecration : 1 ) if it suffers a notable fracture either by reason of the quantity of the fracture (so that no remaining part is large enough to contain the host and chalice), or by reason of the place where it was anointed; 2) if the relics arc removed, or the cover of the sepulchre is broken or removed, unless this was done on the occasion of episcopal visitation. In addi­ tion, an immovable altar loses its consecration if the upper table is separated even momentarily from its supports (c. 1200, §1, 2). A slight fracture does not entail loss of consecration, and any priest may repair it by cementing the crack (c. 1200, §3). Chapter X ECCLESIASTICAL BURIAL Among all tribes and nations an innate sense of reverence has ever prompted men to treat with respect the mortal remains of their fellowmen. This natural sentiment of the human heart has received additional strength among Christians by reason of the dogma of the resurrection of the body. As a general rule, then, the Church forbids cremation especially when this is expressive of a denial of the resurrection of the dead, a motive which seems to have inspired cremation among the Free­ masons (H. O., June 19, 1926; Acta XV’III, 282). And Christian burial is to be refused those who ordered their bodies to be cre­ mated. Moreover, such disposition if contained in a last will or other document, or if made orally, is to be ignored by the heirs as of no validity in canon law, unless civil law renders impossible the observance of this rule (c. 1203). Where just reasons are present the Church will permit cre­ mation, e.g., during a plague. Cremation itself, it must he noted, is not sinful, but it becomes sinful onljr when resorted to in contempt of religious belief. Ordinarily the bodies of the faithful should be buried in consecrated ground, i.e., a cemetery. In five articles we shall discuss: 1) cemeteries considered as sacred places; 2) the church of burial; 3) the cemetery of burial; 4) funeral taxes; 5) denial of Christian burial. ART. 1 Cemeteries Considered as Sacred Places It is the inherent right of the Church to possess her own cemeteries (c. 1206). The reason is that the Church, being a sov­ ereign society by the will of Christ, has the right independently of the State to all means useful or necessary to attain her end. Among such means must be reckoned cemeteries: 1) because the Church has surrounded the act of burial with religious ceremonies, thus 522 ECCLESIASTICAL BURIAL 523 making it a religious act; 2) because only through possessing her own cemeteries intended exclusively for the burial of her own members can the Church give external expression to that sentiment of faith and justice which holds that those who in life refuse com­ munion with the Church should not be permitted such communion after death. In the U. S. private societies are allowed to incorporate and own their cemeteries. The Church in this country, therefore, has full control over her cemeteries in the capacity of a private society, though not as a matter of inherent right. Every parish according to common law should have its own cemetery. Where financial conditions forbid this, the local Ordi­ nary may establish a cemetery common to a number of parishes. The mutual rights and duties of the different parishes in such cases arc to be determined by the rulings of the local Ordinary (c. 1208, §1). Exempt religious may possess their own cemeteries, and this right they have by the common law. Other moral persons, and even private families may have a burial place of their own, distinct from the common cemetery, but by explicit permission of the local Ordinary (c. 1208, §2, 3). In both the parish cemetery, by permission of the local Ordinary, and in cemeteries of religious by permission of the su­ perior, it is permitted the faithful to choose their own graves or plots. In this country these gràves are sold (leased) to individuals or families, the price being paid in consideration of the rental of the ground, and not in consideration of the consecration, which would be simony (c. 1209, §1). Every cemetery should be consecrated, or at least solemnly blessed. The cemeteries of exempt clerical religious are blessed by the major superior, or his delegate; all others arc consecrated or blessed by the bishop, or his delegate. The same rules hold here as in the consecration and blessing of churches. Hence, too, the same rules apply concerning the violation and reconciliation of cemeteries (c. 1205, §1 ; 1207). In addition to the blessed cemetery, there should be set aside a separate unblessed place for the burial of those Catholics who are denied Christian burial (c. 1212). No cadaver may be exhumed from a Catholic cemetery without permission of the Ordinary. Usually, a permit from the civil au­ thorities will also be necessary (c. 1214). 52+ ECCLESIASTICAL BURIAL ART. II The Church of Burial Ecclesiastical burial consists in the transfer of the body to the church, the funeral service in the church, and interment in a Catholic cemetery (c. 1204). The question now arises: to which church is the body to be brought, i.e., which pastor has the right to the funeral service? The rule is that a person should be buried from his proper parish. The proper parish is that parish within whose confines the deceased had a domicile or quasi-domicile. In the case of foreign language parishes, however, membership is governed by diocesan laws or local customs (c. 1216). To the rule that the deceased must be buried from his proper parish church, there are five exceptions: Exception 1. If the deceased chose a funeral church different from that of his proper parish (c. 1223), for the Code gives every­ one the right to this choice, saving children under the age of puberty, and professed religious (c. 1224). However, the relatives are not permitted to choose the funeral church, nor anyone but the de­ ceased. And there must be proof through a legitimate document, or two witnesses, that the deceased before his death chose a church different from that of his proper parish, or that he authorized others to make this choice for him (c. 1226). The witnesses may be the relatives of the deceased (S. C. Council, Julv 10, 1921 ; Acta XIJI, 535). Exception II. If the body cannot be brought to the proper parish church without grave inconvenience, the funeral takes place from the parish where the person died. But the relatives and other interested persons always have the right to demand that the body he transferred to the proper parish, provided they are willing to defray the expenses of transportation (c. 1218). Exception III. Bishops, as a rule, are taken to their cathedral church for burial (c. 1219). Exception IV. Residential beneficiaries, e.g., pastors, are to be taken to the church of their benefice, unless they* had chosen a different church (c. 1220). Exception \'. Religious are generally buried from the church or chapel of their convent, or religious house. This applies also to novices, unless these chose a church of their own. In clerical reli­ gions it is the religious superior who conducts the services; in lay ECCLESIASTICAL BURIAL 525 religions exempt from the jurisdiction of the pastor, it is the chaplain; in religions not exempt from the local pastor’s jurisdiction, it is the latter who conducts the funeral (c. 1221; 1230, §5). But the proper parish is the church of funeral for those who, other than the professed and novices, lived day and night in the religious house (c. 1222). This applies also to postulants and students in preparatory seminaries (Code Comm. July 20, 1929; Acta XXI, 573). Note—The general rules contained in this article suffice to determine the proper pastor of funerals for all practical purposes in our country. It is true that the Code goes more into detail, but in so doing it has in mind customs and practices not observed in the U. S. Thus, an American pastor docs not ordinarily escort the body from the home to the church. Moreover, we have very few non-parochial churches to complicate matters. The casuistry regard­ ing a situation where the body cannot be conveniently taken to the proper parish of the deceased is generally superfluous with us, since the expenses of transporting the body home, even to a very distant city is often cared for by insurance policies, or the good will of the survivors. ART. Ill The Cemetery of Burial The general rule is that the deceased must be buried in the cemetery of the parish church from which the funeral services arc conducted (c. 1231, §1). Yet, here too we find exceptions. Exception I. If the deceased had chosen a cemetery distinct from the cemetery of the funeral church. The Code permits anyone to choose not only his church of burial, but also the cemetery of burial (c. 1223, §1), and this choice may be proved in the same manner as the choice of the funeral church can be proved (c. 1226). But children under the age of puberty, and religious, are forbidden to choose their own cemetery of burial (c. 1224). Exception II. If, although the deceased had not chosen a cemetery, he has an ancestral tomb, or family plot, in a cemetery other than that of the funeral church, burial should take place in the former cemetery, provided the body can be transported there conveniently (c. 1228). Yet it is always the right of the survivors or heirs to pay the expenses of the transportation so as to have the 526 ECCLESIASTICAL BURIAL body buried in the cemetery of the ancestral tomb or family burial plot (c. 1229). Under the pre-Code law the ecclesia tumuli had joint rights with the ecclesia propria defuncti and the ecclesia electiva to conduct the funeral services. Whether this still holds is disputed. At any rate, custom is accorded a more modifying influence over the common law in the matter of funerals than perhaps in any other matter. With us, when a person dies away from home and is transported to his home city or town for burial in the family plot, it is custo­ mary to conduct the funeral services as well as the interment in the latter place. Here the funeral church is usually left to the choice of the survivors. To be valid the choice of a cemetery must fall on a Catholic cemetery. The I Plcn. Council of Baltimore instructed pastors to refuse church burial to Catholics who refused to be buried in a Catholic cemetery. The II (n.392) and III (n. 317-319) Plen. Councils modified this rule to the extent of permitting burial in a non-Catholic cemetery: 1) to converts whose family plot was in a non-Catholic cemetery; 2) to Catholics who prior to 1853 (or after that date in good faith) had bought a plot in a non-Catholic cemetery. In these cases the individual grave was to be blessed prior to interment (cfr. Cone. Balt. Plcn. Ill, n. 317-319). In many rural sections Catholics, being few, arc unable to own their own cemetery. In that supposition either a separate part of the com­ munity cemetery should be reserved for Catholics with the permis­ sion of the competent lay authorities, and this portion blessed, or each individual grave must be blessed immediately prior to inter­ ment. ART. IV Funeral Taxes and the Quarta Funeraria By the funeral tax is meant a monetary sum paid to the pastor to defray the expenses incurred on the occasion of the funeral service, and partly as pastoral maintenance. Understood in this sense, the funeral fees are reasonable. At one time, however, due to abuses, nothing could be asked, but whatever was freely given could be accepted. Today, also, nothing can be demanded beforehand as a conditio sine qua non, but the heirs and executors have a strict obligation in conscience of paying the fees, and this in virtue of positive law introduced by custom and sanctioned by the Church. ECCLESIASTICAL BURIAL 527 The funeral taxes arc fixed by diocesan law or custom. In many places, and this is the desire of the lawgiver, a diocesan sched­ ule which determines the fees for different classes of funerals is followed, e.g., one tax for a simple high Mass, another for a solemn high Mass; one for an early funeral, another for a funeral at a late hour, etc., (c. 1234). Exempt religious must abide by this schedule (Code Comm., Mar. 6, 1927; Acta XIX, 161). The poor must be given a gratuitous funeral service. This should include at least a low Mass and the Libera, and whatever else diocesan law may determine (c. 1235, §2). Whenever the deceased is not buried from his proper parish, and provided the body could have been taken there conveniently, the proper pastor has a right to a share of the funeral fees. The reason is that he who ministered to the spiritual needs of the deceased in life, should minister to him also in death ; and if the deceased chose a different church of burial, it is presumed that he desired that at least some part of the fees should be given to his proper pastor in token of gratitude. The proper pastor’s share is called by the Code portio paroecialis. In the pre-Code law it was called portio canonica because sanctioned by the canons, and quarta funeraria since it consisted of one-fourth of the offering made. The Code leaves it to diocesan law or custom to determine the amount due to the proper pastor. Moreover, the Code sanctions particular customs abolishing the portio paroecialis (c. 1236, 1237). Such contrary custom seems to prevail generally in the U. S. But restitution of the fee by a pastor who was in no way entitled to the funeral must not be confused with the quarta funeraria. ART. V Denial of Ecclesiastical Burial The following arc to be denied ecclesiastical burial in accordance with c. 1240, § 1 : 1) Un baptized persons; but catechumens are to be classed as baptized if they died unbaptized through no fault of their own ; 2) Notorious apostates from the Christian faith; 3) All who had notorious membership in an heretical or schis­ matical sect, or Masonic sect, or in any other similarly condemned society ; 4) Those who died under excommunication or personal inter­ dict pronounced by the ecclesiastical court; 528 ECCLESIASTICAL BURIAL 5) Those who deliberately committed suicide; 6) Those who died in a duel, or from the effects thereof; 7) Those who gave orders that their bodies be cremated; 8) All other public and manifest sinners; e.g., who lived in concubinage, or unlawful wedlock. The above persons are not to be denied Christian burial if they gave signs of repentance before death. In doubtful cases the Ordi­ nary must be consulted. But if time does not permit, the deceased is to be given the beneiit of the doubt. But in all cases scandal should be removed, e.g., by a word of explanation to the parishioners or those who attend the funeral why the deceased is being, or was given church burial. It should be recalled that when Christian burial is denied, this means also that no public Mass or liturgical service of any kind is allowed (c. 1241 ). But the priest may visit the home of the deceased and recite some prayers as a friend rather than as an official repre­ sentative of the Church, so long as this would not give rise to adverse talk, and misunderstandings, and therefore, possible scandal. Chapter XI HOLYDAYS AND FAST DAYS ART. I Holydays Holydays listed—The days on which Mass must be heard, and servile works may not be engaged in are besides all Sundays: 1) Christmas; 2) Circumcision; 3) Epiphany; 4) Ascension Day; 5) Corpus Christi; 6) Immaculate Conception; 7) Assumption of the B. V. M.; 8) Sc. Joseph (Mar. 19); 9) St. Peter and Paul (June 29) ; 10) All Saints. This is the law for the universal Church (c. 1247, §1 ). But in the United States the holydays, excepting Sundays, have been reduced to six: 1) Christmas; 2) Circumcision; 3) As­ cension; 4) Assumption; 5) All Saints; 6) Immaculate Concep­ tion. I’he induit was granted by the Holy Sec to the III P’en. Council of Baltimore, and in virtue of c. 1247, §3 it still holds. Feasts which prior to the Code had been observed as holydays of obligation in some country, diocese or place, if they arc not con­ tained among those listed above in c. 1247, §1, must be considered abrogated (Code Comm., Feb. 17, 1918; Acta X, 170). Dispensing powers—Pastors can dispense from the observance of Sundays and holydays in the case of their parishioners, even while these are outside of the parish, and in the case of non-parishioners while these arc actually in the parish. They may not dispense the whole parish, but only individual persons or families for a just cause and not per modum habitus, i.e., for this or that holyday, not for all holydays (c. 1245, §1). Superiors in clerical exempt religions have the same dispensing powers in the matter of holyday observance as have pastors, but only in reference to their novices, professed subjects, and those who live day and night in the religious house as guests, students, servants or patients (c. 1245, §3). 529 530 HOLYDAYS AND FAST DAYS ART. II Days of Fast and Abstinence Enumeration—Abstinence only must be observed on all Fridays, saving those Fridays included in the next sentence when fast also is binding. Fast and abstinence both must be observed : 1 ) on Ash Wednesday; 2) Fridays and Saturdays of Lent; 3) ember days; 4) the vigils of Pentecost, Assumption, All Saints, and Christmas. Fast only is observed without abstinence on all days of Lent saving the Fridays and Saturdays (c. 1252, §1, 2, 3). On Sundays there is never any fast or abstinence. This applies also to holydays of obligation other than Sundays, unless the holy day falls during Lent, e. g., the Feast of St. Joseph. If a vigil requiring fast and abstinence falls on a Sunday, e.g., if the Feast of the Assump­ tion falls on Monday, the fast need not be anticipated on Saturday. The fast of Lent ceases at noon of Holy Saturday (c. 1252, §4). If a day of fast or abstinence or both falls on a holyday which is such by universal law but which is not observed in some place by reason of an induit to the contrary, the law concerning fast and abstinence docs not cease on those suppressed feast days (Code Comm., Feb. 17, 1918; Acta, X, 170), e.g., if Epiphany with us falls on a Friday, we must observe abstinence. If religious, or any other individual or moral persons, are held by their vows or constitutions to fast or abstain, such vows or consti­ tutions. retain their binding force notwithstanding the relaxations permitted in the preceding paragraph (cfr. c. 1253). Thus, e.g., if the constitutions provide fast during the entire Advent season, the religious will be bound to fast on the Feast of the Immaculate Con­ ception should this fall on Friday. Nature of fast and abstinence—The law of abstinence forbids only the consumption of flesh meat and broth made of meat, but it does not forbid eggs, milk, or the products of milk, and the season­ ing of foods with the fat of animals (c. 1250). 'I'he law of fast prescribes that only one full meal a day be taken, but it does not forbid something to be eaten morning and evening, provided that at such morning and evening meals local custom be observed as regards quantity and quality of food which may be consumed (c. 1251, §1). It is not forbidden to eat fish and meat at the same meal, nor to change or reverse the evening and the morning meals (c. 1251, §2). It is not permitted to eat meat more than once a day on days of fast only (Code Comm., Oct. 29, 1919; Acta XI, 480). But one who by reason of age, frail health, etc., is exempt from fast may eat meat as often as he pleases on days of fast only (S. C. Council, HOLYDAYS AND FAST DAYS 531 Oct. 17, 1923; as reported by Bouscaren, o.c., I, 587). Bound to abstain are all persons who have completed their seventh year of age; bound to fast are all persons from their twentyfirst to their fifty-ninth completed year of age (c. 1254). This ruling applies equally to women and to men (Code Comm., Jan. 13, 1918; as reported by Bouscaren, o.c., I, 593). Dispensations and induits—The Holy See has been wont to grant our local Ordinaries the privilege of the workingmen’s induit, and that of transferring the abstinence from Saturdays in Lent to Wednesdays. In virtue of the workingmen's induit the bishop can dispense workingmen and their families, who otherwise would be held to abstinence, to the extent of allowing them to eat meat once only on all days of abstinence during the year except Fridays, Ash Wednesday, the forenoon of Holy Saturday and the vigil of Christmas. Both induits are usually granted over a five year period and thereupon renewed for another five years. On Oct. 5, 1931, Pius XI empowered our local Ordinaries ad quinquennium to dispense their subjects from the law of fast and abstinence whenever a civil holiday would fall on a day of fast or absti­ nence or both. The induit has been renewed repeatedly. It can be enjoyed by religious insofar as these are not held to fast or abstinence or both on the days in question by an additional obligation peculiar to their rule or constitutions (cfr. the declaration of the S. C. Rel., Sept. 1, 1912; Acta IV, 626). Pastors may dispense their parishioners from the law of fast or abstinence or both, even though the parishioners use the dispensation outside of the parish; and they may in like manner dispense non­ parishioners while these are actually in the parish. The dispensa­ tion can be granted only for a just cause to individual persons or in­ dividual families, and not indefinitely, but as long as the particular cause continues, i.c., in individual cases (c. 1245, §1), and persons so dispensed should avoid scandal by revealing the fact that they were dispensed, if necessary. Superiors in clerical exempt religions have the same powers to dispense from fast and abstinence as have pastors, but only with reference to their novices, professed subjects, and those who live in the religious house day and night as students, guests, pa­ tients or servants (c. 1245, §3). Local Ordinaries may for reasons of public health, or on the occasion of a great concourse of people, e. g·, a large pilgrimage at some shrine, dispense the whole diocese or an entire parish from the law of fast and abstinence (c. 1245, §2). The episcopal induit may be enjoyed by religious provided these arc not held to fast and abstinence by their own rule or constitutions in addition to the obligation of the common law (c. 620). Chapter XII DIVINE CULT ART. I Cult of the Blessed Sacrament Reservation of the Blessed Sacrament—The Holy Eucharist must be reserved in every parish church, and in every non-parochial church attached to a house of exempt religious (c. 1265, f 1, n. 1 ). It may be kept, by permission of the local Ordinary, in the chapels of pious and religious houses, and of colleges in care of the clergy, provided some one is on hand to guard it, and provided Mass is said at least once a week, as a rule, in the chapel in order to renew the Sacred Species (1265, §1, n. 2). But the Blessed Sacrament may be kept only in either the church (non-parochial), or the principal oratory of a religious or pious house (c. 1267). It may be kept, however, in both the church and oratory if the exercises of piety are ordinarily held in the oratory. If a religious house has two or more chapels, the Eucharist may be reserved in only one of them, unless in the same material building arc found juridically distinct families or corporations, e.g., if one part of the convent is occupied by the Generalate, or Provincialate, and another by the parish religious priests, so that in reality there arc two distinct houses in the juridical sense with distinct superiors, although in one material building (cfr. Code Comm., June 3, 1918; Acta IX, 346). Renovation of the Species—The hosts, whether intended for the communion of the faithful or the exposition of the Blessed Sacrament, shall, before being consecrated, be of recent baking. Λ safe rule is not to allow that the sacred species remain unconsumed longer than a month after their baking. Hence, the older hosts should be consumed first, and the new hosts to be consecrated should be so measured that they will not remain unconsumed more than a month computing from the day of their baking (cfr. c. 815, 1272). 532 DIVINE CULT 533 Exposition of the Blessed Sacrament—We must distinguish be­ tween public exposition, i.e., with the ostensorium, and private exposition, i. c., with the pyx. For public exposition the permission of the local Ordinary is required even by religious, both in churches and chapels, saving the feast and octave of Corpus Christi (c. 1274). The bishops usually draw up a schedule of days upon request when the Blessed Sacrament may be exposed publicly during the year in oratories. The diocesan statutes generally regulate this matter for churches. Private exposition is always allowed even without the permis­ sion of the local Ordinary, but a just cause must be present (c. 1274). Thus, if two distinct services arc held on a Sunday, the pastor may have public exposition at one service in virtue, e.g., of diocesan law, and private exposition at the other. The local Ordinary’s permission is required not only for a lengthy exposition, but likewise for the short exposition which accompanies the Benediction with the Blessed Sacrament (Code Comm., Mar. 6, 1927; Aeta XIX, 161). ART. II Sacred Relics Onlj’ those relics may he exposed for public veneration in churches, including exempt churches, which have been authenticated by a cardinal or the local Ordinary, or some other ecclesiastic vested by Apostolic induit with the authority to authenticate relics (c. 1283). But this authentication does not hold for private veneration of relics, and relics may be kept in the homes of the faithful and carried about on their person, observing due respect and honor (c. 1282, §2). Relics of the Blessed (this docs not apply to relics of the Saints), may not be carried about in processions, nor exposed for public veneration save in those churches where Mass and office arc cele­ brated in their honor by Apostolic induit (c. 1287, §3). It is unlawful to sell sacred relics. And those who fabricate false relics, or knowingly sell, distribute or expose them for public veneration incur excommunication reserved to the Ordinary (c. 1289, 2326). 534 DIVINE CULT ART. Ill Sacred Furnishings Sacred furnishings should be carefully kept in the sacristy or in some other safe and becoming place; nor should they, if blessed or consecrated, be devoted to profane uses (c. 1296, §1). Thus, it is forbidden to use the burse to take up collections (S. C. Rites, May 2, 1919; zZc/α XI, 246). Before entering upon their office, administrators of ecclesiastical goods, e.g., a new pastor, should draw up a careful inventory of all the movable and immovable sacred furnishings of the church, one copy of which inventory should be kept in their own archives, another in the diocesan archives (c. 1296, §2). Pastors should also designate in their last will those sacred furnishings which are their personal property; otherwise the Church, and also the civil law in the U. S., will presume that they belong to the parish (cfr. c. 1300). Where parishes are incorporated under the laws of the State, there is little need of the pastor to designate another person to whom the church furnishings will pass upon his death as upon a trustee; they automatically remain in the ownership of the parish; hence c. 1301 has little value in this country. As to the material and form of sacred furnishings, liturgical laws and ecclesiastical traditions must be respected (c. 1296, §3). The Holy Sec is opposed to the introduction of Gothic vestments (S. C. Rites, Dec. 9, 1925; Acta XVIII, 58). Chalices and patens must be consecrated. The amice, alb, cinc­ ture, maniple, chasuble, pall, corporal and altar linens must be blessed, and probably the lunula. The ostensorium, pix, dalmatics, cope and surplice may be blessed. Purificators, the chalice veil, burse, antipendium, candlesticks, cruets, censers, etc., may not be blessed (cfr. Augustine, οχ. VI, under canon 1297). Competent to bless sacred furnishings are: 1) cardinals; 2) bishops; 3) pastors and rectors of non-parochial churches; 4) all priests delegated by the local Ordinary with faculties to this end ; 5) religious superiors and those priests of their religion whom they delegate, but only with respect to furnishings of their own churches or chapels, or those of nuns subject to them (c. 1304). In this country there are no nuns subject to regulars. If a religious priest is chaplain of a community of sisters, or even of so-called nuns with us, he must be delegated by the local Ordinary to bless the sacred furnishings of their church or chapel. Diocesan faculties often confer such powers. DIVINE CULT 535 Sacred furnishings lose their consecration or blessing: 1) if they suffer such fractures, rents or changes that their original form cannot be recognized, or if they can no longer be used for the purpose originally intended ; 2) if they have been subjected to unbecoming uses, or exposed for auction. A chalice or paten does not lose its consecration if the gold plating wears off. But it should be replatcd, and if given to a firm having episcopal approval, the bishop’s permission need not be obtained to the end that a layman may touch the chalice or paten (cfr. c. 1305). Neither the chalice nor the paten, nor, after they have been used at Mass, the purificator, pall or corporal, should be touched, save by clerics, or by those who have charge of these articles (c. 1306, §1). It will he noticed that the canon employs the particle or, from which it is logical to conclude that lay sacristans may touch the articles in question. All other laymen should employ the purificator to carry or repose these objects in their place. But a purificator is not required in the case of the ostensorium or any other object not enumerated in c. 1306, §1 above. Purificators, palls and corporals must be given their first washing by a cleric in major orders, and this water should then be thrown into the sacrarium or the fire. Note that a first washing by the cleric in major orders is not prescribed save for the linens here listed (c. 1306, §2). Chapter XIII THE TEACHING AUTHORITY OF THE CHURCH In four articles we shall consider: I) sacred preaching; 2) semi­ naries; 3) the prohibition of books; 4) the profession of faith. ART. I Sacred Preaching Unless he has the right already in virtue of his office, e.g., as pastor, no priest is permitted to preach without first obtaining facul­ ties from the competent superior (c. 1328). Saving the case where a sermon is to be had before the novices or professed members of a clerical exempt religion, or before those who day and night live in the clerical exempt religious house as Students, guests, patients or servants, in which cases the religious superior may give preaching faculties, only the local Ordinary is authorized to permit priests, even exempt priests, to preach (c. 1338). But the local Ordinary may delegate his ordinary jurisdic­ tion, e.g., to pastors, permitting them to subdelegate extra-diocesan priests to preach in their parish. We say extra-diocesan, for it is the practice of local Ordinaries in the U. S.. to grant in their diocesan faculties the authority to all resident priests to preach anywhere in the diocese. Where pastors do not enjoy habitual faculties to sub­ delegate, they must apply to the local Ordinary for preaching faculties to permit outside priests to give missions, to supply over Sunday, etc., (c. 1341. §2). Preaching and confession faculties arc usually grant­ ed simultaneously. By common law pastors must give a homily on every Sunday and holyday of obligation at least at one Mass. Nor should the pastor habitually discharge this office through others, save for a just cause approved by the local Ordinary (c. 1344, $ 1, 2). With us it is the practice to preach at every Sunday Mass, and this is usually an obligation in virtue of diocesan statutes. But the local 536 TEACHING AUTHORITY 537 Ordinary may dispense from sermons on certain Sundays for a just cause (c. 1344, §3). Local Ordinaries must see to it that during Lent more preaching than usual is done in parish churches (c. 1346, §1). Every parish ought to have a mission at least once every ten years (c. 1349, §1). Canon 1350 enjoins upon pastors that they interest themselves in the spiritual welfare of the non-Catholics who live in their parish. Special informal apologetic classes, e.g., in the school hall, could he arranged for those willing to attend in the evening. The zealous pastor will easily find ways and means of bringing the Catholic doctrine to the knowledge of well-disposed non-Catholics. ART. II. Seminaries We shall treat seminaries in the following order: 1) the nature and kinds of seminaries; 2) the need of seminaries; 3) the adminis­ tration of their temporalities; 4) seminary discipline; 5) rights and duties of rectors; 6) admission and dismissal of candidates; 7) religious seminaries. §1. Nature and Kinds of Seminaries An ecclesiastical seminary is an institution devoted exclusively to the instruction and training of aspirants to the priesthood. We say, devoted exclusively, etc., to distinguish an ecclesiastical seminary from all other schools, whether under church control or not, which arc frequented both by laymen seeking a lay education, and by clerical aspirants, and which for that reason are called mixed schools. We say, devoted to the instruction and training, etc., for the pur­ pose of a seminary is twofold: to impart knowledge both liberal, and professional, and to subject the candidate to a system of discipline by which he may gradually acquire virtues, habits and personal man­ ners becoming his calling. In this latter respect, seminaries arc not unlike military and naval academies where both professional know­ ledge and disciplinary training arc acquired. Seminaries arc divided into: 1) minor and major seminaries; 2) diocesan, interdiocesan, provincial, pontifical and religious semi­ naries. A minor seminary, sometimes called a preparatory college, is 538 TEACHING AUTHORITY one in which the candidate for the priesthood receives a liberal edu­ cation, i.e., in languages, higher mathematics, natural sciences, etc. A major seminary is one in which philosophy and theology arc taught together with their allied subjects, e.g., liturgy, canon law, etc. A diocesan seminary is under the control of the bishop of the diocese in which the seminary is situated ; an interdiocesan seminary is under the joint control of several bishops not of the same ecclesi­ astical province; a provincial seminary is under the joint control of all the bishops of one and the same province; a pontifical seminary is under the immediate jurisdiction of the Holy See; a religious seminar}' is one conducted and controlled by a body of religious priests cither for their own clerical aspirants exclusively, or for other clerical aspirants as well. §2. Necessity of Seminaries From the twofold purpose of seminaries as stated in the defini­ tion given above, namely the professional instruction and training of clerics, it follows that these institutions arc most useful to the life of the Church, and to a certain extent essential. For while the liberal education received in minor seminaries can be obtained at secular colleges, yet the segregation of the candidate from the world, and the daily exercises of piety which are realized in the minor semi­ naries greatly conduce to the preservation of the youthful candidate’s vocation. On the other hand, the theological faculties of certain State universities in Europe, being under control of the civil au­ thorities as to the appointment of professors, selection of textbooks, etc., cannot insure the same degree of orthodox teaching which is found in the major seminaries under the direct control of the Church. And they offer the student no spiritual or moral training to prepare him for his calling. Since the Church as a sovereign society has the right to all means useful or necessary to her end, and since, as was seen, semi­ naries are both useful and necessary in the Church, it follows, as canon 1352 states, that it is the inherent and exclusive right of the Church to educate candidates who desire to enter the sacred ministry. In the United States the civil authorities permit the greatest latitude to private corporations in the matter of education, and the Church has never suffered interference with respect to her right to erect her seminaries and educate her own clerics. To an American it may seem strange that the civil authorities would concern themselves with such matters. But an excessive spirit of nationalism can see in the uncontrolled training of the clergy a TEACHING AUTHORITY 539 menace to the unity and general welfare of the State. Thus, toward the end of the 18th century Emperor Joseph II of Austria suppressed the diocesan seminaries of Austria, Northern Italy and the Neth­ erlands, and in their place established central seminaries under the control of the State. In the 19th century the Church had to pro­ test against somewhat similar actions by the Bavarian and Prussian governments. Only after repeated protests did the Church gain her freedom in those countries through concordats. The necessity of specialized instruction and training for clerical aspirants was felt from the very beginning of the Church. St. Augustine established near his cathedral a monasterium clericorum in which the candidates were to live a common life. His example inspired local church councils in other countries to enact legislation looking to the early training of clerical candidates. Bishops had their cathedral schools, and the monks their monastic schools in which, however, both laymen and clerics were educated. But seminaries in the modern sense of the word, i. c., institutions in which only clerical candidates are received and educated, owe their origin to the 23rd session of the Council of Trent. That session decreed that every diocese is bound to support and educate a certain number of clerics in proportion to the necessity and resources of the diocese, and poor dioceses could combine to have a common seminary. Poor candidates were to be educated gratis. So enthused were the Fathers of the Council at seeing this legislation passed that had the Council done nothing more than enact such provision, they declared their other labors at the Council would have been amply repaid. For they well realized that the deplorable ignorance and unholy lives of many clerics were partly responsible for the so-called Reformation. The Code in canon 1354 repeats the command of the Council of Trent that every diocese have its own seminary if possible. Where this is not possible the bishop must send his clerical candi­ dates to a seminary of another diocese, or to a seminary conducted by religious, or to an interdiocesan or regional seminary where such have been lawfully established. §3. Temporal Administration of Seminaries For the erection of a seminary and the maintenance of the seminarians, the Code in c. 1355 permits the bishop: 1) To order a collection to be taken up at stated times in all the churches of the diocese; 2) To decree a tax or assessment in the diocese; 540 TEACHING AUTHORITY 3) To unite certain simple (non-residcntial) benefices to the seminary. In the United States simple bénéfices arc unknown. Neither is the assessment as contemplated by the Code practicable. For that assessment is to be equal for all benefices, and parishes, nor can the entire yearly income of a parish he assessed but only that which remains after all expenses have been met. Few parishes in the United States, however, find themselves at the end of the year with a considerable surplus. Wherefore, with us, seminaries arc maintained: 1) by collec­ tions taken up in the churches for this purpose; or 2) by assessments which are levied in proportion to rhe resources of a parish, and regardless of any surplus when all running expenses have been paid; 3) by burses; 4) in some dioceses by an Apostolic induit exempting pastors from the obligation of applying the Missa pro populo on certain days provided they give the stipend to the bishop for the support of the seminary, and by the induit permitting priests to accept a stipend for their binated Mass in favor of the seminary. The general administration of the temporalities of the seminary is in the hands of the bishop. In matters of graver moment he is bound to ask the advice of a board of two priests appointed by him­ self with the advice of the diocesan consultors, this board to be appointed for a term of six years (c. 1357, §1 ; 1359). For everyday expenditures there should be appointed a treasurer or procurator (oeconomus). This official must live in the seminary, and may be one of the professors, his rights and duties being determined in detail by the statutes of the seminary as drafted by the bishop (c. 1358). $4. Disciplinary Administration of Seminaries The disciplinary government of the seminary looks to the intellectual and spiritual training of the students. Here, too, supreme control is vested in the bishop who has the right to draw up statutes and regulations to this end. The bishop ought frequently to pay a personal visit to the seminary, to ascertain how classes arc conducted, what textbooks arc used, etc., and especially before ordinations should he inquire into the character, vocation and intellectual fitness of those to be ordained (c. 1357). The bishop is assisted also by a board of discipline, which like the board of temporal administration consists of two priests chosen by himself with the advice of the diocesan consultors. In weighty matters, which are not defined by the Code but which might comprise TEACHING AUTHORITY 541 such points as the selection of professors and textbooks, the selection of confessors, etc., the bishop is bound to ask the advice of this board. Excluded from the disciplinary board, as also from the board of temporal administration, are the rector, the vicar-general, the treasurer, the ordinary confessors, and the familiares of the bishop, i.e., those priests who live day and night with the bishop (c. 1359). A. Intellectual Training In the minor seminary Christian doctrine must be given first and chief consideration. This should be adapted to the capacity and age of the students. Next in importance come Latin and one's native language. As to other branches of study the seminary curriculum must insure the student that degree of learning which is generally accepted as the common standard of culture for laymen and clergy­ in the place where the candidate will exercise the sacred ministry (c. 1364). The Code does not enter into detail here since the con­ cept of a liberal education varies in different countries. In the major seminary: 1 ) Philosophy with its allied subjects, e. g., profane history, natural sciences, etc, must be taught for two years. 2) The theological course must comprise four complete years, and in addition to dogmatic and moral theology it must include especially sacred scripture, ecclesiastical history, canon law, liturgy, sacred eloquence and ecclesiastical chant. Moreover, pastoral the­ ology' must be taught in conjunction with practical instructions con­ cerning the manner of teaching catechism to children, of hearing confessions, visiting the sick and assisting the dying (c. 1365). 3) Philosophy and theology must be taught according to the method, teaching and principles of the Angelic Doctor (c. 1366, §2). It does not seem necessary to use the Summa of St. Thomas as a textbook, which could hardly' be done for lack of time. It suffices, perhaps, to employ a textbook which follows the scholastic or syllogis­ tic method, provided the author embodies in his leading theses the the doctrine of St. Thomas, even though in the course of a thesis he draws the students’ attention to opinions held by other Catholic schools of theological thought. For the teaching of philosophy, theology and canon law those should be preferred who have received a doctorate in these respective branches from some university or faculty recognized by the HolySee. Moreover, care should be taken that at least scripture, dogma, moral, and church history have distinct professors (c. 1366, §1, 3). 542 TEACHING AUTHORITY B. Spiritual Training In addition to the spiritual director every seminary must have two ordinary confessors (c. 1358). However, the students are to be permitted access to other confessors, no matter whether these live in or outside the seminary, but the discipline of the seminary must be preserved (c. 1361, §1, 2). The bishop shall see to it: 1 ) That daily the seminarians recite morning and evening prayers in common, make meditation and assist at the sacrifice of the Mass; 2) That at least once a week they go to confession and fre­ quently receive holy communion ; 3) That on Sundays and holydays of obligation they assist and serve at solemn Mass and Vespers, especially in the cathedral church, if in the judgment of the bishop this is possible without prejudice to discipline and studies; 4) That every year they make a spiritual retreat for a number of continuous days; 5) That at least once a week they receive a spiritual confer­ ence which ought to close with some pious exhortations (c. 1367). To further insure the proper spiritual training of seminarians which is often effected more by example than precept, canon 1360 prescribes that those priests should be appointed to the office of rector, spiritual director, confessor and professor who excel not alone in learning but are moreover conspicuous for their virtue and prudence. Whenever for any reason a student lives outside of the seminary he shall be committed to the care of a pious and competent priest who shall watch over him and train him in piety (c. 1370). §5. Rights and Duties of the Rector All the student and professors, as well as other officials of the seminary, must obey the rector in the discharge of their duties (c. 1360, §2). He shall see to it that the professors conduct their classes, and fulfill otherwise their respective duties (c. 1369, §3). The rector jointly with the other officials of the seminary must see to it that the students observe the seminary rules approved by the bishop, and the plan of studies, and that they become imbued with a truly ecclesiastical spirit. They shall often point out to them the rules of Christian etiquette by word and example and they shall TEACHING AUTHORITY 543 exhort them constantly to observe the laws of hygiene in dress and person, and to cultivate courtesy, modesty and gravity of manners (c. 1369, §1, 2). The seminary being exempt from the jurisdiction of the pastor, pastoral rights with respect to all who are in the seminary arc reserved to the rector or his delegate, saving marriages (e.g., of the lay help). But the rector shall not make it a habit to hear the confession of the seminarians, although he may occasionally hear those who freelv come to him for some grave and urgent reason (c. 1368). §6. Admission and Dismissal of Candidates A. Admission of Candidates Only legitimate children are to be admitted to the seminary, or those who have been legitimated in accordance with the rules of canon law (c. 1363, § 1 ; c. 984, n. 1 ; c. 1114; c. 1116). The candidate must have that disposition and desire which will justify the hope that he will always discharge the duties of the sacred ministry with success (c. 1363, §1). In other words, the candidate must show signs of a vocation to the ecclesiastical state. We may add with Vermeersch-Creusen (o.c. 11, n. 687) that these signs of a vocation to the sacred ministry do not call for a sensible internal invitation of the Holy Ghost, but they are present in every serious minded young man who has a firm resolve to study for the priesthood, and who is hindered by no impediments or irregu­ larities, at least by none from which the Church is not accustomed to dispense. Whether the candidate is in fact both mentally and spiritually qualified to be ordained, i.e., whether in fact a vocation is present, will be discovered in the course of his seminary years. Before a candidate is received he must present his baptismal and confirmation certificate, and a certificate of legitimate birth if this does not appear from the baptismal certificate. He must also furnish testimonial letters concerning his good character, these be­ ing usually given him by his pastor (c. 1363, §2). B. Dismissal of Candidates Those are to be dismissed from the seminary who are found to be disorderly, incorrigible, or rebellious; likewise, those who because of their general conduct and character do not seem to be fit candidates for the priesthood; finally, those who progress so slowly in their studies that there is little hope that they will ever 544 TEACHING AUTHORITY acquire sufficient knowledge. Those who sin against faith and morals must be dismissed peremptorily (c. 1371). §7. Religious Seminaries The canons we have considered in this article deal primarily with secular seminaries. But clerical religious Orders and Congregations have also their own houses of studies for their religious candidates, which can be called seminaries. Concerning the establishment of religious houses, the reader is referred to p. 300, 302. The spiritual government of the houses of studies is covered both by the common law, and by the constitutions of each religious organization. As to the intellectual training of religious seminarians, whether in the minor, or preparatory semi­ nary, or in the major seminary (the clericatc), the same rules apply as for studies in secular seminaries (cfr. p. 356-357). ART. Ill Censorship and Prohibition of Books Censorship of books—The following books (and the same is to be said of daily papers, periodicals, and any other kind of publica­ tions according to c. 1384), may not be edited without the permis­ sion of the local Ordinary or the Holy Sec, and the same applies to translations of already approved works (c. 1392), namely: 1) Without permission of the local Ordinary (and in addition that of the major superior in case of religious authors according to c. 1385, §3), it is forbidden to both clerics and laymen to publish books of sacred scripture, theology, church history, canon law, natural theology, ethics, prayer books and other devotional works; in short, any publications which professedly discuss religious or moral questions. The same ban applies to holy pictures (c. 1385. §1). Moreover, clerics may not, without said permission, publish books even on non-rcligious subjects, nor contribute articles to newspapers or periodicals of any kind (c. 1386, §1). The local Ordinary competent to give the permission required in the preceding paragraph is: 1) the proper Ordinary of the author; 2) the Ordinary of the place where the publications are edited; 3) the Ordinary of the place where the matter is printed. Should one Ordinary refuse his imprimatur, the writer must mention this fact to the other competent Ordinary whom he should happen TEACHING AUTHORITY 545 to approach, and this under pain of invalidity of the subsequent per­ mission (c. 1385, §2). The diocesan censor, or censors, in granting the nihil obstat after examining the book or article, and the bishop in granting the imprimatur, likewise the major superior in giving his imprimi potest, do not necessarily vouch for the truth of every statement made by the author, nor do they necessarily thereby approve of each and every opinion he advances. A publication issued with ecclesiastical approval merely assures that the work contains nothing contrary to Catholic teaching in matters of faith or morals (cfr. c. 1393, §2). 2) Without permission of the Holy See it is forbidden to publish: a) works intended to further the beatification or canoniza­ tion of some servant of God (c. 1387) ; b) collections of indulgences, but for books which occasionally insert indulgenced prayers or record indulgences, the local Ordinary’s permission suffices (c. 1388); c) collections of the decrees of the Holy See (c. 1389) ; d) transla­ tions of the Bible, unless the translations are accompanied by explana­ tory notes, in which case the bishop’s permission suffices (c. 1391). But liturgical books, e.g., breviaries, rituals, etc., likewise litanies, may be published by the sole authority of the local Ordinary, pro­ vided the bishop has first made sure that they accord with the first or typical edition printed by the Vatican Press, or by one of the printers to the Holy See (c. 1390, also Woywod, o.c., n. 1405). Prohibition of books—Not only the Sovereign Pontiff, an oecu­ menical council and the Holy Office, but also particular councils, local Ordinaries, the supreme moderators of clerical exempt religions, and local abbots, may prohibit their subjects the reading of certain books for a just cause (c. 1395). Once a book is prohibited, all translations thereof are likewise forbidden (c. 1396). When a pub­ lication is prohibited this means that, without due permission, not only is one forbidden to read it, but also to keep, sell, translate or alienate it in any way (c. 1398). Cardinals, bishops, and other Ordinaries, are not held to the law of prohibited books (c. 1401). But Orientals are bound to all such prohibitions (S. C. Oriental Church, May 26, 1928; Acta XX, 195). Competent to grant permission to read and retain prohibited publications is one’s proper Ordinary, in addition to the Holy See. But the Ordinary may grant the permission only for designated publications mentioned by the petitioner; he cannot grant general indeterminate permissions to a person (c. 1402). One who has obtained permission to rend forbidden books should take care that they do not come into the hands of others who lack such permis­ sion (c. 1403, §2). The Code itself in c. 1400 allows all scripture 546 TEACHING AUTHORITY and theology students to read (within limits) non-Catholic edi­ tions of ancient texts of the Bible, whether in their original text, or their ancient, or modern translated versions; likewise all edi­ tions published by Catholics without due authorization. Canon 1405 observes that a general permission to read prohibited books does not extend to those publications whose reading is forbidden by the divine law itself, e.g., obscene books, anti-Catholic literature in the case of a person not well grounded in the faith, etc. If a person must read certain books, e.g., teachers and students in the case of certain ancient classics, he must endeavor by prayer and other safeguards to make the proximate occasion of sin remote; if this is impossible, no number of ecclesiastical permissions will justify his reading the books. Books whose subject matter puts them into any of the following categories are forbidden by the common law itself (c. 1399), even though the particular book is not found in the Index of Prohibited Books, and even though the particular book in question may not constitute a danger to the faith or morals of the individual, i.e., even though it is not forbidden hy the divine law in his case, namely: 1) non-Catholic editions of the Bible; 2) books which defend heresy or schism, or professedly attack religion or morality in general, or discuss religion from a non-Catholic viewpoint, or which treat of any religious subjects, being written by Catholics in disregard of the ecclesiastical imprimatur, or which describe new revelations, apparitions, visions, prophecies arid miracles, or which introduce unapproved devotions, or vilify Catholic forms of worship, ecclesi­ astical government, or the clerical or religious state, or which teach or promote superstition of any sort, advocate duels, suicide, divorce, or justify Freemasonry and secret societies, or which pro­ fessedly treat of obscene matters, or which divulge apocryphal indulgences. In addition, many books are prohibited by special decree of the Holy See, and the totality of such books constitutes the so-called Index of Forbidden Books. Lest the legislation concerning the prohibition of books lose most of its efficacy, pastors should frequently instruct their people concerning the moral danger inherent in bad literature in general, and in publications prohibited bv the Church in particular (c. 1405, §2). While those who read the above prohibited books without due permission are always guilty of sin, they do not always fall under censure (cfr. p. 706-707). TEACHING AUTHORITY 547 ART. IV Profession of Faith—Oath Against Modernism Profession of faith—Those who must make the profession of faith, a profession which they must make personally and not through a proxy (c. 1407), all contrary customs being abrogated (c. 14US), are the following: 1 ) Diocesan consultors before they assume office must make the profession of faith before the local Ordinary, or his delegate, and the other consultors; 2) Vicars-general and pastors prior to assuming office before the local Ordinary or his delegate; 3) The rector of the seminar}' and the professors of theology, canon law, and philosophy before the local Ordinary or his delegate, and this at the beginning of each scholastic year; 4) Candidates for the subdiaconatc, and for confession and preaching faculties, before the local Ordinary or his delegate; 5) Superiors in clerical religions (and in clerical societies without vows, according to the Code Comm., July 25, 1926; Acta XVIII, 393), before the chapter or the superior who appointed them, or before their delegates (c. 1406, §1). The profession of faith must be repeated as often as a re­ appointment to any of the above offices occurs (c. 140b, §2). Oath against Modernism—Being in the nature of a transitory precept, the Oath against Modernism prescribed by Pius X, Sacro­ rum Antistitum, Sept. 1, 1910 (Acta II, 655), was not mentioned in the Code. Nevertheless, until Modernism disappears, the Oath retains its binding force and must be taken by all who are held to the profession of faith as just described (cfr. H. Off., Mar. 22, 1918; Acta X, 136). Further declarations on the Oath were issued by the Consistorial Congregation, Sept. 25, Oct. 25, Dec. 17, 1910. From which declarations it can be seen that professors in seminaries, including religious professors in religious houses of studies, must both make the profession of faith and pronounce the Oath against Modernism annually. Chapter XIV ECCLESIASTICAL INSTITUTIONS Among ecclesiastical things the Code reckons ecclesiastical institutions. These are in the nature of non-collegiate persons, of whom we spoke above on p. 131. They arc corporations consisting of a collection of goods or assets upon which the Church confers legal personality. The ecclesiastical non-collegiate person finds no counterpart in American law. The closest approach to them is the case of the eleemosynary, or non-stock corporations. But even these arc com­ posed of physical persons, and it is these physical persons who arc incorporated as trustees of the college, hospital, etc., not the goods themselves. In the case of ecclesiastical institutions we find physical persons, it is true, who act in the capacity of trustees, boards of directors, etc., but these persons are not incorporated, only the goods arc incorporated ; the title to temporalities vests in the fictitious legal person, not in the administrators or any other physical persons. ART. I Ecclesiastical Benefices We shall discuss: 1) the origin of benefices; 2) their nature; 3) parochial benefices in particular. §1. Origin of Benefices In the primitive Church the offerings of the faithful all went into one common fund. The administrator of this fund was the bishop who divided it into four parts, one portion being reserved to himself, another going to the support of the clergy, a third to the relief of the poor, a fourth to the erection and maintenance of sacred edifices. This system did not find favor with the rural 548 BENEFICES 549 clergy, especially as the offerings were usually in kind, and these they had to forward to the bishop only to receive them back again. When about the sixth century the Church came into possession of lands through the piety of the faithful and the liberality of civil rulers, certain of these lands were allotted to the rural clergy for their maintenance. The cleric was not considered the owner of the property but only the usufructuary, i.e., he had the right to the income, e.g., the grain, fruit, cattle, rent, etc. About the 11th century this system of clerical support had become universal. The cleric’s right to the revenues from such real estate was called a benefice, the word beneficium among the ancient Romans having signified any grant by a sovereign to his subject, and in later feudal days more particularly the grant of land made by some powerful overlord to an inferior nobleman in recognition of the latter’s fidelity and military support, the overlord remaining in theory the owner of the land, while the other had but the right to the revenues. In the case of the clerical benefice, the church land itself became by a fiction of law an owner, while the beneficiary enjoyed the income. Notwithstanding the wholesale secularization of church prop­ erty by civil governments since the 17th century, benefices still obtain in the Church today, the cleric’s source of maintenance deriving otherwise, as a rule, than from real estate. §2. Nature of Benefices An ecclesiastical benefice is a juridical entity erected in per­ petuity by the competent ecclesiastical authority, and consists of a sacred office together with the right to derive revenue from the endoivment of the office (c. 1409). Four elements, then, constitute an ecclesiastical benefice: 1) a sacred office, c. g., the care of souls in the case of a parish, the recitation of the canonical hours in the case of a canonry, the celebration of Mass in the case of a chaplaincy, etc.; 2) an endow­ ment (capital) from the income of which the cleric is supported; 3) perpetual establishment; 4) erection of the office into a moral person. The endowment of a benefice may consist: 1) of real estate: 2) of obligatory payments on the part of physical persons, e.g., patrons, or moral persons, e. g., the State in many European coun­ tries; 3) of voluntary offerings of the faithful, as in the case of our parishes; 4) of stole fees; 5) of choir distributions, e.g., in the case of cathedral canons. BENEFICES 550 In pre-Code days it was the common teaching that with few exceptions our parishes in this country were not benefices. The reason for this was twofold : I ) all benefices by common law were to be conferred in perpetuity, and this is restated in c. 1433; 2) the endowment was supposed to consist of real estate. Under the Code there can be no doubt that our parishes in America are now benefices: 1 ) because, as was seen, the endowment may consist of voluntary offerings of the faithful; 2) because parochial benefices need no longer be conferred in perpetuity, the Code in c. 454 making room for removable pastors. In the United States we have only two kinds of benefices, it would seem, namely, bishoprics, and pastorships. Both the bishop and pastor are supported by the free-will offerings of the faithful in the form of a salary; the latter directly so, the former by way of assessment or thr cathedraticum. And while we have chaplains and assistant pastors exercising sacred offices and deriving a fixed salary therefrom, yet these offices with us are not looked upon as benefices, although it would seem that nothing is lacking to consti­ tute them benefices save the declaration of the bishop. That declara­ tion would probably have only one practical effect, namely to make such chaplaincies and assistant pastorships irremovable offices. In which case the chaplains could not be generally removed against their will save for certain criminal offenses, specified in the law, and by way of a formal trial ; nor could the assistant pastor be removed save in the manner of pastors, or for grave disregard of the pastor’s authority (c. 477). §3. Parochial Benefices Of the 89 canons which discuss benefices, very few have practical application to the Church in this country. The legislation concerning non-residential and non-curatc benefices may be ignored, these being non-existent with us, e. g., canonries. Likewise, those canons which define the rights of patrons may be ignored since we have no patrons, and the bishop has a free hand in the erection and conferment of secular parishes. Again, many canons contemplate a system where the beneficiary is supported by income from real estate, and they determine the rights and duties of the cleric on this score. But our pastors are simply maintained by the free-will offerings of the faithful, which being in the form of a salary, the pastor himself takes periodically from the sum total of collections, pew rent, etc. It remains to sec what rights the bishop has in respect to the erec­ tion, union, division and dismembration of parochial benefices, i. e., of parishes. BENEFICES $51 In the erection of a new parish the bishop generally is un­ restricted, there being no patrons, nor any interference on the part of the civil authorities (c. 1414-1418). But if the erection of a parish results from dividing an old parish, certain rules must be observed (cfr. infra). The bishop is likewise ftee to unite parishes, although this seldom happens in the United States, save where the Catholic popula­ tion in great numbers leaves a certain locality, or where a language parish has died out. But the bishop may not unite a secular parish with a religious house without permission of the Holy Sec (c. 1423). He should also confer with his diocesan consultors (c. 1428). Neither may the bishop take a parish away from religious and give it to the secular clergy if the religious had received the parish in perpetuity (c. 1422). Very infrequent with us is the transfer of a parish, i. e., the transfer of the parish title from one church to a non-parochial church. 'I'he reason is that we have so few non-parochial churches to which the title could be transferred. Of more importance arc the division and dismembration of parishes. A division is effected when from one parish there arise two or more. A dismembration occurs when part of the revenues or the territory of one parish is assigned to a new parish, or to an existing parish (c. 1421). Canon 1427 permits the bishop to divide any parish for a canonical cause, and this without asking the consent of the pastor or the parishioners. This applies also to religious parishes. For, although c. 1422 denies the bishop the right to divide religious benefices, this canon is supplemented by the more specific ruling with reference to parochial benefices in c. 1427. And so, c. 1422 must be construed as referring to non-parochial benefices in charge of religious, of which we have none in the United States. Two causes arc recognized by c. 1427 as canonical for dividing a parish: I) either the difficulty of reaching the parish church due to distance or for any other cause; 2) the large number of parishioners who cannot he cared for adequately even through the appointment of assistant pastors. Here, according to c. 1428, the bishop needs the advice of the diocesan consultors, and of interested persons, especially pastors whose rights are involved. Canon 1427 likewise permits the bishop to dismember a parish’s territory, even apart from erecting a new parish, i. e., to enlarge the territory of one parish at the expense of another. This is allowed for the same reasons as the division of the parish would be allowed, and it applies even to religious parishes. 552 BENEFICES When dividing a parish the bishop of necessity dismembers its territory, and usually the goods of the old parish which are located in the part which has been severed, if there arc any. But the bishop may divide the totality of the assets which belonged to the old parish, and also the liabilities, and apportion them equally between both parishes (c. 1500). In practise, this is seldom done in the United States, for the new parishioners cannot be expected to bear the burden of the debts of the old parish since they have enough to do to build their new parish church, parish house, school, etc. It would be otherwise if the new parish were given a share of the assets of the old parish, but this, too, seldom happens since as a rule the old parish has no assets to share with the new parish, after meeting its own running expenses. Canons 1432, 1437 permit the bishop to confer parishes at will upon any clerics save himself. But he may not confer two or more parishes on one and the same cleric, these being incompatible offices each requiring residence (c. 1439). Yet, he may confer a second parish upon a priest with the title of administrator, i.e., temporarily until the second parish gets a pastor of its own. But the conferment of some parishes is reserved to the Holy See (c. 1435). As to religious parishes, cfr. p. 265 and 277. Pastors who culpably neglect rhe divine office arc bound to restore their salary pro rata, cither to the parish, the poor, or the diocesan seminary (c. 1475, §2). Before taking canonical possession of his parish a pastor cannot exercise pastoral rights. Canonical possession is effected by induction into office. But where formal induction is not observed by reason of contrary custom, as in many dioceses of the United States, the Ordinary may dispense from the formalities of an induction, and such dispensation contained in the letters of appointment is equiva­ lent to canonical possession (c. 1444). While this may be true of benefices in general, yet when there is question of a parochial benefice, more explicit instructions arc often given as to the precise time when pastoral rights begin, c. g., from the moment the appointee arrives in his new parish. ART. II Institutions Other than Benefices Just as benefices are the means of clerical support, so there are other institutions (non-collegiate moral persons) which provide CHARITABLE INSTITUTIONS 553 for the needs of the laity. From the very beginning the Church regarded the poor and the afflicted as her particular wards, and accordingly founded numerous institutions for their relief. In the Eastern Church we see these institutions first appearing, and this for the simple reason that the Church developed earlier in the East than in the West. Hence, the Greek names which to this day cling to the ecclesiastical institutions under consideration. Thus we have institutions for the sick (nosocomia), lodging houses (xenodochia), foundling institutions (brephotrophia), orphan asylums (orphano­ trophia), etc. Later in the Western Church we find schools and universities under the control of the Church for the benefit of the ignorant. Often these institutions were endowed by private individuals and entrusted to religious communities. It was not always clear how far the jurisdiction of the bishop extended in such cases: 1) because of the right of patronage claimed by the pious founder; 2) because of the almost limitless exemption of regulars prior to the Council of Trent. The Council of Trent in placing definite limits to the exemp­ tion of regulars cleared up the question concerning the jurisdiction of local Ordinaries with respect to charitable institutions in charge of religious, or even in charge of laymen. The local Ordinary alone grants such institutions their ecclesi­ astical charter of incorporation (c. 1489, §1). From that time on their goods are ecclesiastical goods, and are subject to the vigilance of the local Ordinary, and to the rules of alienation to be described in the following chapter. How the institution is incorporated under the laws of the State is a matter of fact, and incorporation varies according to the laws of the different States, cfr. infra, p. 557. Prior to incorporation, whether ecclesiastical or civil, the insti­ tution should have a set of by-laws determining the choice and the powers of the administrator or board of directors, the name of the institution, its object, the beneficiary in the event the institution becomes extinct, etc. (c. 1490). Once the institution has received canonical erection, the local Ordinary has the right in every case without exception to examine its financial accounts (c. 1492). He has not this right if the institu­ tion has not received the charter of ecclesiastical incorporation, c. g., if it is owned by Catholic laymen and only entrusted to the care of religious (c. 1491). The reason is that the goods of the institution are not then ecclesiastical goods, as we shall see in the following chapter. But if revenues accrue from gifts, and pious foundations, S5+ CHARITABLE INSTITUTIONS since these are intended for works of charity or benevolence in the diocese, it would seem that to this extent the local Ordinary may demand an account from the religious. As far as religious discipline is concerned, the local Ordinary may visit all Catholic institutions of the diocese, and inquire con­ cerning sound doctrine, good morals, exercises of piety and the administration of the sacraments and sacramentals, the celebration of Mass, and the conducting of public worship (c. 1491, £2), Without permission of the Holy See ecclesiastical institutions cannot be suppressed, united to other institutions, or converted to purposes foreign to the intention of the founders, unless the laws of foundation expressly allow this (c. 1494). Chapter XV THE TEMPORAL GOODS OF THE CHURCH In five articles wc shall consider: 1) the nature and divisions of ecclesiastical goods; 2) the right of the Church to temporalities; 3) the owner of ecclesiastical goods; 4) the acquisition of ecclesiasti­ cal goods; 5) the administration of ecclesiastical goods. ART. I Nature and Kinds of Ecclesiastical Goods $1. Nature of Ecclesiastical Goods (c. 1497) Ecclesiastical goods are material goods, whether corporeal or incorporeal, movable or immovable, which belong either to the Church universal, or to the Holy Sec. or to an inferior moral person in the Church. Goods, therefore, which belong to a cleric considered as a private individual are not ecclesiastical goods. But goods of which a cleric in an official capacity is the mere administrator, e. g., the goods of a parish, arc ecclesiastical goods. A religious with simple vows retains the ownership of his personal goods, and these are not ecclesiastical goods; hut in the capacity of superior or procurator the religious exercises rights over goods which belong to the institu­ tion. and which, therefore, are ecclesiastical goods. The goods of a Catholic society which has not been incorporated by canon law, even though it be incorporated by civil law, are not ecclesiastical goods. The distinction between ecclesiastical and non-ecclesiastical goods is of the utmost importance. The restrictions of canon law placed upon the alienation of ecclesiastical goods, and the law requiring a financial report to be made to the Ordinary, affect only goods which belong to an ecclesiastical corporation. 555 556 CHURCH TEMPORALITIES §2. Kinds of Ecclesiastical Goods (c. 1497) Ecclesiastical goods arc divided into: 1 ) Corporeal and incorporeal goods, according to whether they can be perceived by the senses or not; to the latter class would belong all credit rights; 2) Movable and immovable goods, according to whether they can be transferred from place to place, e.g., money, vestments, etc., or cannot be so transferred, e.g., real estate; 3) Sacred and non-sacred goods, according to whether they have been set apart for divine cult by means of consecration or blessing, or not; 4) Precious and non-precious goods, the former being those which have a notable value by reason of workmanship, e. g., paint­ ings and statues ; or by reason of historical worth, e. g., manuscripts ; or by reason of material, e. g., a jeweled miter. The law is not clear as to the minimum sum required before a thing can be called precious. A decision of the S.C. Counc. July 13, 1919 {Acta XI, 416) seems to set this sum at 1,000 lire. The same Congregation at a later date refused to be more explicit on the subject, and referred the enquirer to the Code Commission (Jan. 15, 1922; Acta XIV, 160). ART. II The Right of the Church to Temporalities We shall consider this right in theory, and then the various ways in which church property is held in the United States. §1. Theoretical Rights of the Church (c. 1495) Canon 1495 vindicates to the Church universal, and the Holy See (the papal office), the inherent right independently of the civil authorities to acquire, hold, and administer temporal goods which conduce to the realization of the Church’s mission. This same right is acknowledged by church law in all inferior moral persons in the Church for the natural reason that they are units within a sovereign society distinct from, and independent of, the State. The inherent right of the Church to acquire, hold, and adminis­ CHURCH TEMPORALITIES 557 ter temporal goods which are necessary or useful to the accomplish­ ment of her divinely appointed mission on earth is a natural corollary of the general proposition already stated and proved (Introduction ch. II), to the effect that the Catholic Church is a perfect society. As such she has the right to all means necessary or useful to her legiti­ mate mission. Among those means are temporal goods. For although the Church is a spiritual society by reason of her end (the salvation of souls through supernatural sanctification), she is not spiritual by reason of her members. These are not angels but men, they arc not disembodied spirits but composed of body and soul. External means must be at the disposal of the Church to aid and foster religious sentiments in her members. Thus, the administration of the sacra­ ments, the celebration of Mass, and the performance of other acts of public worship call for material edifices. Sacred chalices and vestments are necessary for the reverend performance of liturgical acts. Sacred ministers must be housed and supported. The poor who are the special wards of the Church by the will of Christ must be cared for, and funds must be at hand to administer to their needs, to exercise works of Christian charity and mercy, and to conduct institutions such as hospitals, orphanages, schools, homes for the aged, etc. §2. How Church Property Is Held in the United States Although, due to our system of separation of Church and State, neither the Federal nor the State governments regard the Catholic Church as a sovereign society by divine law, but consider her only a private voluntary association of citizens for religious purposes, and consequently deny to her, as to all other churches and sects, the right to acquire, hold and administer corporate goods in her own name independently of the civil laws, yet American legislation is not hostile to religious associations but permits them to incorporate so that their temporal possessions may be recognized and protected by the civil courts. Since American law does not recognize the non-collegiate moral person, i. e., a sum of goods upon which the law confers juridic personality, but only physical persons can be incorporated, and since most ecclesiastical goods from the viewpoint of canon law are held by non-collegiate moral persons (institutions), saving religious organizations as such, namely, Orders and Congregations, it is necessary that the Church adopt some one of the various methods of holding goods recognized by American law. These may be re­ duced to four: the corporation aggregate, the corporation sole, the fee simple, and the trust. Not all of these systems arc permitted 55$ CHURCH TEMPORALITIES by each State, but where two or more systems of holding church property are recognized, it becomes the problem of the bishop to ascertain which of the several systems is more likely to secure ecclesiastical control over the goods of the Church in accordance with the spirit of canon law. In the early days of the American Republic civil legislation permitted religious congregations (all sects) to hold their property in the form of a corporation aggregate, the trustees to be elected by the members of the congregation. Civil legislators merely accommo­ dated themselves to conditions as they found them, for the majority of American citizens were non-Catholics and their congre­ gations were organized on a basis of lay control. Catholic bishops in many dioceses accepted the corporation aggregate in default of a better method of holding church property. It was not long, however, before abuses arose. Trustees who themselves were laymen chosen by the members of the parish, and who had controlling authority over the temporalities of the parish, attempted time and again to dictate also in matters spiritual, e. g., by refusing to accept a pastor lawfully appointed by the bishop; and thus quarrels were constantly being taken to the civil courts and to the Holy See. The system of lay trusteeism was soon abandoned after the First Plenary Council of Baltimore in 1829 condemned its abuses. Thereafter, some bishops resorted to the method of holding all the property of the diocese in fee simple. To hold property in fee simple means to hold it by an absolute title of ownership. For this it is not necessary that the various ecclesiastical institutions in the diocese be incorporated under the laws of the State. It suffices that all deeds to church property be conveyed to the bishop as to an absolute owner. While this system secures clerical control over the temporalities of the Church, it has its defects in other respects. Thus, it is necessary that the bishop make a last will providing for the transfer of all church property to his successor in office, other­ wise the bishop’s heirs can lay claim to the goods. Again, nothing forbids creditors to lay claim to church goods to recover for the private debts of the bishop. On July 29, 1911 the S. C. of the Council forbade this method absolutely (cfr. Eccl. Rev., Nov. 1911). A third way in which church goods can be held is in trust. After the lay trustee corporation had been abandoned many bishops resorted to this system, and still cling to it for want of a better method. Here again, it is not necessary that the various ecclesiasti­ cal institutions of the diocese be incorporated under the civil law. When property is bought for an ecclesiastical institution, e. g., a parish, school, hospital, etc., the deed is made over to the bishop CHURCH TEMPORALITIES 559 not in fee simple but in trust. The property so conveyed cannot be diverted for uses other than those specified in the instrument, and this the American courts will recognize so long as the instru­ ment has been properly drawn up according to the formalities of the civil law. This system eliminated the defects inherent in the fee simple idea, and in theory accords with canon law in placing control over ecclesiastical goods in the hands of the bishop or his delegate. But in practise the civil courts have often viewed the bishop as a mere dry, passive, silent trustee, regarding each congre­ gation as the real, actual owner of the property with powers to conclude contracts, even contracts of sale, without the bishop’s consent. A few states recognize the system known as the corporation sole. This was borrowed from England where the king, each bishop, dean and parson is a corporation sole. In the corporation sole only one physical person is incorporated, and thus the system differs from the corporation aggregate. It bears no similarity to the non-collegiate moral person of canon law, for here the temporal goods arc in­ corporated, whereas in the corporation sole a physical person is incorporated, and by means of such incorporation all his rights are preserved entire to his successor in office. It can be resorted to by Catholic bishops only in those American States which permit corporations sole. All property is vested in the bishop as sole trustee and administrator, and thus clerical control is assured. An­ other advantage is that upon the vacancy of the episcopal see all church property in the diocese passes to the bishop’s successor with­ out any need of further formalities. The disadvantages of the system are: 1) that during the vacancy of the see no business can be transacted since the title to all church property is held in abey­ ance; 2) the rulings of statute law and court decisions in America are very sparse so that it is difficult to determine the exact nature of the corporation sole and the powers of the bishop, e. g., can the corporation sole take personal as well as real property, can the bishop alienate the property of a parish without the consent of the parishioners, i. e., is he a mere dry, silent trustee?, etc. Where the corporation aggregate could be introduced which would at the same time give the ecclesiastical superiors controlling authority over the temporal goods of the Church, this would be preferable to the corporation aggregate of former times which vested all authority in the laity. It would be preferable also to the corpora­ tion sole and the trust system. Such a corporation aggregate exists under the laws of New York State. The main features of the system are: 1) each parish is incorporated with rights to the goods 560 CHURCH TEMPORALITIES vested in the members of the parish, but; 2) the board of trustees of the parish arc not exclusively laymen chosen by the parishioners, but the board consists of the bishop, the vicar-general, the pastor and two laymen of the parish, and thus clerical control is assured ; moreover, 3) episcopal sanction is made necessary for the validity of the acts of the trustees, or board of directors; and finally; 4) the bishop has absolute power to divide a parish and apportion its goods as he sees fit. The New York system of parish incorporation has been recom­ mended by the S. C. of the Council (July 29, 1911; Eccl. Rev., Nov. 1911). The difficulty of introducing it throughout the Re­ public lies in the fact that individual States are slow to grant charters of incorporation which deviate from the common forms recognized in the State on the theory that this would imply a special privilege. On the subject discussed under the present heading the reader may profitably consult the Canonical Studies listed on p. 78, 79 of this manual, from which we have quoted profusely. ART. Ill The Owner of Ecclesiastical Goods (c. 1499, §2) Prior to the Code the person in whom the ownership of ecclesiastical goods was to be considered vested was a question much disputed among canonists. Their opinions can be reduced to three: 1) The supernatural theory. This was held by all writers who vindicated to God or the saints direct ownership of all church property. While seemingly confirmed by various texts of Scripture, yet it must be viewed as a mystical theory at the most. It is true that God owns the property of the Church as well as that of the State, but the question is who under human law must be considered the owner. To reply that God is the owner would necessitate bringing God to court when suits are brought against church prop­ erty, and since God cannot be brought to court all suits would have to be dismissed for lack of jurisdiction. 2) The theory of papal dominion. Advocates of this opinion vested the ownership of all ecclesiastical goods in the Pope. That the Pope could declare himself owner of all church property seems possible; that in fact certain Popes had so declared themselves to this effect in the past, as the proponents of the theory claimed, was the question at issue. CHURCH TEMPORALITIES 561 3) The theory of institutional ownership. Some pre-Code writers advanced the opinion that dominion over church property is vested in each particular church or ecclesiastical institution which happens to possess the goods in question. This opinion has now been embodied in c. 1499, §2 which states that the ownership of goods to be exercised under the supreme authority of the Holy See belongs to that moral person which lawfully acquired the goods. It must be remembered that the principle just enunciated to the effect that each institution in the Church is owner of its own property applies even where, according to civil law, all property in the diocese is vested in the bishop as a trustee, a corporation sole, or (as formerly) in fee simple. The bishop, therefore, would have no authority from the viewpoint of canon law to transfer the goods of one institution to another institution in ownership, saving the case of dismembration of a parish. And although the civil court would uphold him, the individual institution through its administra­ tor could have recourse to the Holy See. Religious organizations (Orders and Congregations) arc usually incorporated under the American civil law in the form of corporations aggregate. Some­ times the individual houses of the religion are incorporated, some­ times only the religion or the province. Where the religion or prov­ ince alone is incorporated, and no matter how the civil law may view the situation, the general or provincial would be powerless to appropriate the goods of the individual houses, e.g., their superflu­ ous revenues, unless the constitutions explicitly conferred this power upon him, a supposition which, if verified, would seem to militate against c. 1499, §2. ART. IV Acquisition of Ecclesiastical Goods (c. 1499-1517) In virtue of her divine sovereignty and independence of the State, the Catholic Church may acquire temporal goods in any way sanctioned by divine law (c. 1499. §1). As a matter of fact, how­ ever, the Church conforms to the rulings of civil law, and canonizes it, saving a few exceptions where she lays down norms of her own, especially in the matter of prescription. We shall pass over in silence the historical methods of acquiring church property, especially the system of tithes and first fruits of which c. 1502 speaks, and we shall consider only the present day modes by which ecclesiastical goods are acquired. These may be 562 CHURCH TEMPORALITIES reduced to nine: 1) dismembration of corporations; 2) extinction of corporations; 3) alms begging; 4) the cathcdraticum; 5) assess­ ments; 6) fees and perquisites; 7) prescription; 8) free-will offer­ ings; 9) contracts. §1. Dismembration of Corporations When the territory of a moral person, e. g., a parish, is divided, and either a new moral person comes into existence, or part of the territory which has been dismembered is united to an already exist­ ing corporation, in these cases the competent ecclesiastical superior who effected the division has the right to apportion both the resources and the debts which had been common to the divided territory between both corporations, observing equity, the intention of the founders (if any), the intention of donors, lawfully acquired rights, and particular statutes by which the moral person whose territory has been divided may possibly be governed (c. 1500). The first way, then, in which ecclesiastical goods may be acquired is by assigning to a moral person a part of the goods of another moral person whose territory has been divided. §2. Extinction of Corporations A second way in which ecclesiastical goods are acquired is by the extinction of a moral person. Here the goods of the extinct corporation become those of the corporation immediately superior to it, c. g., the goods of a suppressed religious house go to the province, those of a suppressed parish go to the diocese, etc. But the intention of the founders and donors, lawfully acquired rights and the particular statutes of the extinct corporation, must be safe­ guarded (c. 1501). The limitations regarding the intention of founders, particular statutes, etc., mentioned in this and the preced­ ing section will hardly be verified in the case of American parishes ; they are more likely to be verified in the case of a college, hospital, orphanage, etc., endowed by private individuals. §3. Alms Collecting A third way in which church goods may be acquired is through the collecting of alms. That abuses in this matter mav be avoided c. 1503 forbids Catholic laymen, as well as clerics in a private capacity, to solicit alms without either the permission of the Holy See. or the written permission of both their own Ordinary and the Ordinary of the place where the alms are to be solicited. This CHURCH TEMPORALITIES 561 applies when aims are asked for a pious or ecclesiastical institution or aim, not e.g., for civic purposes, like the community chest, since the Church cannot be held responsible for abuses in the latter case. I hc prohibition docs not extend to clerics acting in an official capacity, c. g., the pastor is allowed to collect for the parochial school and all parish projects, and he may authorize some society to act as his agent, provided the soliciting of alms is confined to his territory. Concerning the right of religious to go in quest of alms we have already spoken. The begging of alms through the mail is not contemplated here, but rather begging by personal approach because of the greater abuse possible, c. g., insufficient deliberation on the part of the donor, the embarrassment in refusing alms to the personal caller, etc. §4. The Cathedraticum The cathedraticum is a moderate annual tax paid to the bishop, or the episcopal chair (cathedra) as a token of subjection to the episcopal see. It must be paid by all churches, benefices and lay con­ fraternities subject to the bishop's jurisdiction. It should he added that the parishes of religious in the United States are benefices subject to the bishop (c. 1504). For centuries the amount of the cathedraticum was fixed at two solicit (about 90 cents in present American money). The Code rules that the amount should be determined by the provincial coun­ cil, or by a convention of the bishops of the province, unless it has already been determined by long-standing custom. In the United States the cathedraticum is resorted to also as a means of episcopal support, and usually takes the form of an assessment placed on each parish of the diocese in proportion to the resources of the parish. On Mar. 14, 1920 (Acta XII, 444) the S. C. of the Council for­ bade the bishops of France to levy a cathedraticum on parish churches in proportion to the number of parishioners in order to meet the expenses of the chancery office, since this would be foreign to the purpose of the cathedraticum, and, moreover, the cathedrati­ cum should be uniform for all parishes. It does not seem that this declaration extends to the United States: 1 ) because it is a particular, not a general, answer; 2) because the circumstances of the two cases arc not parallel; the bishops of France wished to introduce an innovation; the bishops of America in regarding the cathedrati­ cum as a source of episcopal support are merely recognizing the force of long-standing custom. 564 CHURCH TEMPORALITIES §5. Assessments The Code limits the right of the bishop to place assessments to four cases : 1 ) he may levy a tax for the support of the seminary, unless he prefers to substitute this by a collection taken up in the churches at stated times; 2) he may assess a parish which has been resigned so as to provide a pension in favor of the resigning pastor; 3) when some special need of the diocese warrants it, e.g.. extra­ ordinary repairs of the cathedral church, a visit ad limina, etc., the bishop may impose by way of exception a moderate tax on all beneficiaries (not benefices), whether secular or religious; 4) when the bishop gives to an institution its charter, or consecrates a place, he may impose an assessment on the institution or the place (c. 15051506). The limitations imposed here by the Code to the assessing powers of the bishop can hardly be applied to the United States. The Code at this place is legislating for countries where the State erects parish churches, schools, hospitals, etc., and maintains them, besides providing salaries for the clergy. In our country the Church is not subsidized by the States, but by the free-will offerings of the faithful. Ordinarily the voluntary contributions of the faithful are relied upon to finance diocesan works of charity, but when cir­ cumstances advise the assessment instead of collections taken up in the parish churches for diocesan projects, e. g., because of the negli­ gence and indifference of some pastors in taking up such collections, nothing seems to impede the bishop from imposing assessments. §6. Fees, Perquisites and Salaries (c. 1507) By fees and perquisites we understand offerings of the faithful made on the occasion of receiving spiritual favors, whether the granting of such favors involves the exercise of ecclesiastical juris­ diction, e. g., dispensations, or the exercise of the power of orders, e. g., the sacraments, Christian burial, blessings, and other sacra­ mentels. From the very first it was seen that such offerings could easily lead to simony on the part of the clergy, or to a suspicion of simony on the part of the faithful, and repressive legislation abounded. Later, when the faithful came to understand that the offering could be considered not as a price for things spiritual, but rather as a method of contributing to the support of the clergy, they took the initiative in many places and made spontaneous, volun­ tary offerings on the occasion of spiritual ministrations. In time CHURCH TEMPORALITIES 565 thev become obligated thereto in virtue of law arising from custom. On June 10, 1896, the S. C. of the Council (d.S.S. XXIX. 433) issued a decree which has been substantially embodied in c. 1507. Expenses incidental to formal ecclesiastical trials are to be determined by the provincial council, or a meeting of the bishops of the province (c. 1909). But the schedule of fees in this case need not be approved by the Holy See. Fees cannot be exacted for marriage dispensations saving a slight emolument to cover the expenses of the chancery, but even this should be waived in the case of the poor. This applies when the local Ordinary proceeds in virtue of ordinary jurisdiction, e. g., when he dispenses from the banns. When the bishop grants marriage dis­ pensations in virtue of quinquennial faculties of the Holy See, it is generally stipulated in the faculties themselves how much of the designated fee the Ordinary may retain for the chancery, the residue to be forwarded to the Holy See at the end of each year (c. 1056). In the matter of funerals it is the right of the local Ordinary alone to draw up a schedule of fees that can be exacted for various classes of funerals; hence diocesan statutes must be consulted here (c. 1234). Concerning all other acts of voluntary jurisdiction, namely all acts exclusive of marriage dispensations and funerals, it belongs to the provincial council, or to a meeting of the bishops of the province to establish a uniform schedule of fees. But this schedule will have no effect until approved by the Holy Sec (Congr. of the Council). This is the law of c. 15Ô7, and it has been in force since 1896. Where no provincial council has been held since that date, or if held, no list of fees has been drafted, it belongs to diocesan law or custom to determine the amount of the fees. But pastors arc not permitted to demand the customary stole fee in the case of the poor, nor even in the case of the non-poor. The Holy See permits that laws be enacted obliging the payment of stole fees so that those who refuse to obey the law without just excuse can be held guilty of sin. The pastor has no right, however, to enforce this law to the extent of refusing the sacraments and sacramentals to recalci­ trants. We stated that stole fees contribute to the pastor’s maintenance. This is true even where the pastor derives a salary, as most pastors do. The amount of the salary, it would seem, should be so fixed by the bishop that when taken alone it will not suffice to sustain the pastor becomingly, but only when taken in conjunction with stole fees. 566 CHURCH TEMPORALITIES §7. Prescription Another way in which ecclesiastical goods are acquired is through prescription. On this point the Code adopts the civil law of each nation, saving the following exceptions: 1) The following are not subject to prescription: a) rights established by divine law, e. g., the common privileges of clerics: b) rights which can be acquired only by Apostolic induit, e. g., the privilege of a portable altar; 3) spiritual rights so far as laics are concerned, e. g., the right to choose and canonically institute their own pastor; 4) definitely determined limits of ecclesiastical provinces, dioceses, parishes, vicariates and prefectures Apostolic, abbacies and prelacies nullius; 5) an ecclesiastical benelice without the appear­ ance of a bona fide title; 6) Mass stipends and obligations; 7) the right of visitation and the right to obedience on the part of some ecclesiastical prelate; 8) the payment of the cathedraticum (c. 1509). 2) Sacred things (blessed or consecrated things) which are in the possession of private individuals can be acquired through pre­ scription by other private individuals, e. g., a priest can lay lawful claim to a chalice which has been in his peaceful possession for years, although it is now proved to have belonged to another priest original­ ly. Sacred things which belong to moral persons in the Church can be prescribed by other ecclesiastical moral persons, but not by a physical individual (c. 1510). 3) A period of 100 years is required to prescribe against immovable, or even movable precious goods, and rights and actions (law suits) belonging to the Holy See. A prescription of 30 years suffices when such goods, rights or actions belong to any other moral person in the Church (c. 1511). 4) Good faith is required in him who prescribes. This is true not only at the beginning, but during the whole time necessary to prescribe (c. 1512). §8. Free-Will Offerings The Church today, at least in the United States, receives most of her temporal goods through the free-will offerings of the faithful (piae fidelium voluntates). These may be outright gifts in the sense that they do not call for an extended administration. To this class belong plate collections, poor-box offerings, pew rents, funds raised through bazaars, drives, picnics, subscriptions, etc. Such gifts when made to rectors of churches, even to rectors of religious churches, arc presumed to be CHURCH TEMPORALITIES 567 made to the church, not to the rector, unless the contrary is evident (c. 1536). If a gift is such that it calls for continued administration, e. g., a student burse, the Ordinary should be notified thereof, for the law makes him the original executor of all pious trusts. A simple cleric is not competent to accept such gifts which necessitate administration over an indefinite period of years, for he has no authority to pass this obligation on to his successors in office. The Ordinary will judge whether the gift should be accepted, and how it must be invested. If the gift is made and intended for a clerical exempt religion so that the religion itself becomes the beneficiary, the competent Ordinary is the major religious superior. But if the gift is intended for works of benefaction to be performed in the parish or diocese, and even though the pastor is an exempt religious, the competent Ordinary is the bishop (c. 1516). The rules in the above two paragraphs apply to all free-will offerings, whether they be made by the living with no thought of death in mind {actus inter vivos), or whether they be made in such a way that they become effective only upon the death of the donor. To the latter class belong: 1) donationes mortis causa, where im­ mediate possession is transferred but not ownership, as where a Catholic in good health offers a sum of money for Masses to be said upon his death; 2) piae ultimae voluntates, i. c., last wills that dispose of one’s entire estate in behalf of pious causes; 3) legata pia, or pious legacies that dispose by way of gift of part of the testator’s goods. Both last wills and legacies transfer possession and ownership only upon the testator's death. In a doubt concerning the testator’s intention, c. g., he left a sum of money for Masses without specifying whether he desired low or high Masses the Ordinary would seem competent to interpret the last will (c. 1515, §1). But if the intention cf the testator is by no means vague, yet cannot be satisfied, it is the right of the Holy See to commute or divert the gift to some other pious cause or object (c. 1517, §1). Concerning pious foundations, since these are bilateral con­ tracts rather than free-will offerings, we shall say a word about them in the following article. §9. Contracts The Church can acquire goods also by way of contract, e. g., through purchase. We shall consider the subject of contracts in the following article, namely, as an act of administration, rather than as a means of acquiring temporal goods. 568 CHURCH TEMPORALITIES ART. V Administration of Ecclesiastical Goods The administration of goods, as distinct from their acquisition, comprises ever}’ act which tends to conserve the goods or to increase their value. This sometimes necessitates their alienation. We shall first consider the general rules of administration, and then the particular rules which govern alienations. §1. General Rules of Administration Authority of the Roman Pontiff—The Pope is the supreme administrator and dispenser of all ecclesiastical goods (c. 1518). As supreme administrator he may enact rules of administration binding in the universal Church, and such rules are contained in c. 1519-1543 of the Code. As supreme dispenser of ecclesiastical goods, the Pope, while not the owner of the goods, may still exercise the right of eminent domain, and transfer the ownership of goods from one moral person to another. He may even transfer title of ownership to the State in the case of goods which the State has unjustly confiscated. A just reason is required for the licitness of such transfer, c. g., the resultant harmony between Church and State which benefits the whole community even though the individual may suffer. Authority of the local Ordinary—The local Ordinary is the administrator of the goods which belong to the diocese as such, and this right he may exercise through delegates. In respect to other temporalities in the diocese the local Ordinary exercises supreme surveillance over their administration, saving goods which belong to religious communities, but even here he may exercise vigilance within the limits explained on p. 324-326, namely, as regards the investment of certain goods, and as regards the right to exact an annual financial report in certain cases there described. But the local Ordinary is not a dispenser of the goods of the Church in his territory, and he may not transfer the title of ownership from one moral person to another, save in the case where a parish is dismem­ bered, as wc have seen. The local Ordinary· exercises surveillance over the administra­ tion of the temporal goods of the Church in his territory especially in four ways: 1) when he supplements the general rulings of the common law by more specific rulings in the form of diocesan statutes, e.g., by determining the amount which cannot be expended CHURCH TEMPORALITIES 569 by inferior administrators without his permission: 2) when he makes a canonical visitation of the various parishes and institutions subject to him in the matter, and examines the financial books; 3) when he goes over the financial reports submitted to him annually by inferior administrators; 4) when he grants necessary permission to inferior administrators in cases which exceed the bounds of ordinary adminis­ tration. It is the duty of the local Ordinary to appoint a diocesan board of administration whose advice, and even consent where this is re­ quired by law, he will seek. The board is to consist of three mem­ bers, one being the local Ordinary acting as president, the other two members to be versed in civil law if possible (c. 1520). The local Ordinary must also appoint administrators for those institu­ tions which are without any (c. 1521). Usually when an institution is incorporated under the civil law, the charter specifics who the administrators are to be, the local Ordinary having approved of the specific form of incorporation beforehand. Hospitals, colleges, religious organizations etc., often have several members on the board. In the case of parishes the pastor is ipso facto the administrator in subordination to the bishop. He is often assisted by lay trustees either in virtue of the civil charter of incorporation, or in virtue of diocesan law. Whether the lay trustees act only in an advisory capacity, or have actual restraining powers, is a question of fact to be determined by the particular law of civil incorporation. Duties o/ administrators inferior to the local Ordinary—The local Ordinary merely supervises the administration of the temporali­ ties in the diocese. Each institution according to canon law must have its own administrator in subjection to the local Ordinary. The obligations incumbent upon the latter are: 1 ) To draw up and preserve an inventory of the goods of the institution (c. 1522) ; 2) To sec that the goods are not damaged, destroyed or lost (c. 1523.Π. 1); 3) To deposit in safekeeping, and to expend, the revenues in accordance with particular law, and the wishes of the donors (c. 1523, n.3); 4) To invest in safe and profitable investments, and with the consent of the local Ordinary, whatever funds and revenues remain over and above the running expenses (c. 1523, n. 4) ; 5) To keep a book of income and expenditures (c. 1523, n. 5) ; 6) To preserve all deeds and valuable commercial papers, S70 CHURCH TEMPORALITIES e g insurance policies, in the safe (archives) of the institution (c. 1523, n. 6); 7) To submit a yearly financial report to the local Ordinary (c. 1525); 8) To refrain from starting a lawsuit without the local Or­ dinary’s permission, or (in urgent cases) the permission of the rural dean (c. 1526); 9) To remain within the limits of ordinary administration as defined in particular law, otherwise the transaction will be invalid, and the administrator—not the Church—will he responsible (c. 1527). Acts of ordinary administration are those which the particular law, e. g., the diocesan statutes permit the administrator to perform without previous permission of the local Ordinary, e.g., to make expenditures for the ordinary running expenses of the institution, and for improvement, up, c. g., to $200. Acts of extra­ ordinary administration arc those for which the law requires the previous consent of the higher superior. §2. Rules Governing Alienations A. Alienations in General By alienation in canon law we understand the transfer of title to church property, whether the transfer is absolute, c. g., in sales, or conditional, e.g., in mortgages; whether ownership is trans­ ferred or only the use. provided the condition of the church thereby becomes less secure, e.g., in a lease (c. 1533). The alienation of church property is usually effected by means of contract. Whatever the civil law in the particular place where the transaction occurs legislates concerning the making of contracts and the contracting of debts, that the Church also adopts, save where the civil law runs counter to divine law, or church law has regula­ tions of its own (c. 1529). In every alienation of ecclesiastical goods the following formali­ ties are required, saving the case of perishable goods: 1 ) That written appraisal of the worth of the goods be made by experts; 2) That urgent necessity, or evident utility to the Church, justify the alienation ; 3) That the permission of the competent ecclesiastical superior be obtained beforehand; 4) That the goods be sold, or leased, at public auction; 5) That the money realized from the transaction be placed in safe and profitable investments (c. 1530, 1531). CHURCH TEMPORALITIES 571 Only the formality which requires the previous permission of the competent superior seems necessary for the validity of the alienation. As to the other formalities, custom, prudence, etc., may dictate a departure from them, e. g., it may be more prudent to conduct a private sale, than an auction. Competent to permit the alienation of ecclesiastical goods is: 1) The Holy See in the case of (a) precious goods as de­ scribed on p. 556; (b) goods of any kind whose value exceeds 30,000 lire or francs (c. 1532, SI). The gold lira or franc is here understood in accordance with the practice of the Roman Curia. This lira corresponds to approximately 20 cents in American cur­ rency. Hence, 30,000 lire or francs would be $6,000. On July 20, 1929 (Acta XXI, 574) the Code Commission answered that the permission of the Holy Sec is required when several articles arc to be alienated and they exceed in value 30,000 lire or francs when taken collectively, even though the individual items do not, e. g., if a library is sold piecemeal. 2) The permission of the local Ordinary suffices for the aliena­ tion of goods whose value lies below 1,000 lire ($200). But the local Ordinary may not grant this permission without the previous consent of all interested parties, and until he has consulted the diocesan hoard of administration, unless the matter is of trilling importance (c. 1532, §2). 3) The permission of the local Ordinary likewise suffices to alienate goods whose value exceeds 1,000 but falls short of 30,000 lire. But here the Ordinary must not only have the consent of the interested parties, and hear his diocesan board of administration, but he must in addition have the consent of the diocesan consultors (c. 1532, §3). When permission is sought to alienate divisible goods, the petitioner must specify what amount of the goods has already been alienated, otherwise the rescript will be invalid (c. 1532, §4). The Church has the right to bring personal action against all who contract debts without the above described permission, and against their heirs; and to bring a real suit against the actual possessor of the ecclesiastical goods which have been unlawfully alienated, safeguarding the right of the bona fide possessor to recover the amount he paid to the delinquent administrator (c. 1534). B. Alienations in Particular Donations—Prelates, rectors of churches, and other ecclesiastical administrators, arc forbidden to make gifts of ecclesiastical goods, save in small amounts as sanctioned by local custom, and onh then S 72 CHURCH TEMPORALITIES for reasons of gratitude, piety, or Christian charity; otherwise their successors in office can recall the gift (c. 1535). An administrator, e. g., a pastor, may not refuse a gift made to the institution except by permission of the Ordinary, otherwise he can be held to indemnify the institution (c. 1536). Sales—In the sale of sacred articles the price must not be increased in view of the consecration or blessing attaching to the article (c. 1539, §1). Administrators inferior to the local Ordinary must not exceed the bounds of ordinary administration, but if the sale exceeds the sum defined by local law, the Ordinary’s permission is required for the validity of the transaction, as we saw. Loans—When sacred things are loaned (things blessed or consecrated), they may not be put to uses foreign to their purpose (c. 1537). A loan {commodatum), understanding this as a gratu­ itous transfer of the use of a thing, is not an act of alienation pro­ vided the person who loans the thing reserves to himself the right to recall it at his good pleasure. The condition of the Church docs not then become worse in the sense of c. 1533. If by loans we understand the contracting of debts, i. e., the borrowing of money, this is an act of alienation, and the Ordinary’s permission is necessary for validity when the amount to be borrowed exceeds the limits defined in the diocesan statutes. When loans arc contracted, church goods are usually offered as collateral or security in the form of a mortgage or lien, and thus the goods so weighed down by obligations become less secure; indirectly they are being alienated (c. 1533). Mortgages—Here the same rules apply as in the case of loans, i.e., church goods may not be mortgaged if the value of the loan exceeds the amount determined by diocesan law as constituting acts of ordinary administration (c. 1538). Exchanges—When sacred things (things blessed or consecrated) are exchanged, they may not be given a higher appraisal by reason of their consecration or blessing (c. 1539). An exchange is an act of alienation, and if the value of the goods which are exchanged exceeds the bounds of ordinary administration, the Ordinary’s per­ mission is required. This applies also to an exchange of bonds and securities (c. 1539). Real estate belonging to the Church is sometimes leased, e. g.. ground which has been bought by the parish with a view to constructing a church eventually when financial conditions permit. It may happen that such land offers goods prospects to some business concern in the meantime because of its location in a large city, and is temporarily leased to the concern. CHURCH TEMPORALITIES 573 The permission of the Holy See is required to lease church property when the lease extends beyond nine years and the value of the property exceeds $6,000. The local Ordinary can grant per­ mission if either the lease is less than nine years, or if over, the value of the property is below $6,000. But the local Ordinary must ask the advice or consent of the diocesan board of administration, or of the diocesan consultors, depending on the worth of the property or the extent of the lease as explained in greater detail in C. 1541. Investments, purchases, expenditures—Although these acts are not always acts of alienation, yet the permission of the Ordinary may be necessary. Thus, c. 1523, n. 4 imposes upon the administrator the obligation of seeking the consent of the local Ordinary to invest money belonging to a church, e. g., by investing it in real estate, or bonds. But without the local Ordinary’s permission a pastor may deposit money in the bank for safe-keeping (c. 1523, n. 3). Pur­ chases and expenditures which do not exceed the bounds of ordinary administration do not call for the previous permission of the local Ordinary. Note—The alienation of goods belonging to a religion is governed by further laws considered elsewhere. That is to say, while the Apostolic induit is always required to alienate goods whose value exceeds $6,000, yet to alienate goods below that value the permission of the competent religious superior suffices, and the per­ mission of the local Ordinary is not necessary save in the case of a monastery of nuns, and in the case of religious of diocesan law. §3. Pious Foundations These are temporal goods given to any moral person in the Church with the perpetual or long-standing obligation of saying Masses, conducting divine services, or performing works of piety and charity with the annual income realized from the capital invest­ ment of the pious foundation. It is a bilateral contract belonging to the do ut facias class of general contracts that lack a specific name; hence not a purchase, nor sale, nor loan, or any other such named contracts (c. 1544). As in the case of free-will offerings that call for continued administration, so too pious foundations cannot be accepted without permission of the Ordinary, i.e., the major religious superior if the foundation is in the church of exempt clerical religions, but the local Ordinary in all other cases (c. 1550). Note that while pious foundations and certain free-will offer­ ings agree in this that both require continuous administration, yet 574 CHURCH TEMPORALITIES they differ in that pious foundations carry a burden., c. g., to say Mass on certain days annually in a determined church, and there­ fore, must Im? regarded as bilateral contracts, whereas a student burse is a free-will offering, i. c., a donation, and carries with it no burden other than to invest the capital and draw upon the revenue or annual interest. It is the right of the Ordinary to determine the sum within which pious foundations can be accepted (c. 1545) ; as where he would set $500 as the minimum sum for one foundation Mass. Sometimes it may happen that the original capital which con­ stituted a pious foundation proves insufficient to meet the burdens agreed upon. Wars and other causes often bring about a deflation in the value of a country’s currency. In that case the obligations can be reduced. If Masses must be reduced, c. g., one is said every two years instead of annually, only the Holy Sec may permit such reduc­ tions. But if the obligation attaching to a pious foundation is one that has nothing to do with .Masses, e. g., conducting special services so many times a year at a certain altar, the Ordinary will be com­ petent to allow such reductions (c. 1551, 1517). ON PROCESSES Thus far we have learned what may be called the substantive law of the Code. We pass now to procedural law. This has for its purpose the enforcement of the substantive law. Canonical processes arc simply certain sets of formalities which the competent church authorities must observe when they execute the law. In most cases the law is administered or enforced outside of court by superiors exercising only their administrative jurisdiction. Usually this is done by means of the superior’s precepts, commands, instructions, regulations, etc. Here the superior is generally allowed a great degree of latitude as to the manner of proceeding. Only by way of exception does the law lay down a prescribed series of for­ malities. Such cases of formalities we find prescribed for pro­ ceeding against clerics charged with certain offenses, or for the removal of pastors for purely administrative non-penal reasons (cfr. p. 653 ff. ), also for the infliction of suspension ex informata conscientia, as well as for the dismissal of religious in non-exempt religions. Whenever the superior enforces the law outside of court, whether he proceeds according to a well prescribed set of norms, or according to his best judgment, he is said to proceed adminis­ tratively, summarily, extrajudicially, or in the canonical language of the Church, via administrativa, via disciplinari, via oeconomica. Every administrative branch of government must have authority to review complaints; and to make decisions that come up in the ordinary course of its work in enforcing laws, provided the 575 576 ON PROCESSES questions involved arc not too complex, or involve issues of too serious a nature. See also p. 651 in this connection. When, however, it is desired to enforce the law with stricter justice to all parties, whether the dispute concerns one’s spiritual or temporal rights, or one’s status under the law, e.g., as to whether one is validly married, and if the question is sufficiently involved and the evidence not altogether clear so that a rather length}' pro­ cedure is advisable, in such cases of graver moment, the controversy is usually reserved to the courts. The reason is that courts are regulated by stricter forms of procedure, i.c., by solemnities which aim to secure greater exactness in the establishment of facts, and the utmost correctness in the interpretation of the law To the courts the canon law reserves the following matters: (1) disputes involving rights to temporal goods; (2) disputes con­ cerning one’s legal status, for which wc have marriage and ordina­ tion trials; (3) criminal charges where the accused is liable to punishment. In all other matters the law is enforced administra­ tively. The decisions of the courts are called sentences, and to secure even greater justice the law allows appeal to the higher court with suspensive effect. On the other hand, the decision of the superior acting extrajudicially is called a decree, and the remedy against decrees is called recourse, which is taken to the next higher admin­ istrative superior, the remedy allowing no suspensive redress so that the decree must be observed in the meantime. For if recourse were allowed with suspensive effect from every order of the su­ perior, there would be an end to all authority. This principle is up­ held in civil legislation as well as in canon law. Sometimes church law does grant recourse from administrative decrees with suspensive effect, but then this must be expressly stated in the particular canon or law. To express these thoughts the Code uses the words: in suspensivo and in devolutivo. 'I'he latter term can be translated “with non-suspensive effect” the former “with' suspensive effect.” Both terms occur repeatedly throughout the Code, as may have been noticed. The Fourth Book of the Code is divided into three parts: (1) On trials; (2) On beatifications and canonizations; (3) On extra­ judicial processes to be observed in six specified cases there enumer­ ated. We will treat all this matter in the order followed by the Code, confining our attention to the general outlines, as the nature of our manual does not permit a detailed study of all the canons in this part of the Code. Part One ECCLESIASTICAL TRIALS We shall under this heading consider: (1) trials in general; (2) civil trials; (3) criminal trials; (4) marriage trials; (5) ordi­ nation trials. 577 Chapter I TRIALS IN GENERAL We shall consider: (1) the nature and kinds of ecclesiastical trials; (2) the competent forum; (3) lower courts and appellate courts; (4) the introductory stage of the trial; (5) the probative stage of the trial; (6) the final stage of the trial. ART. 1 Nature and Kinds of Ecclesiastical Trials §1. Nature of an Ecclesiastical Trial An ecclesiastical trial is the legal discussion and settlement of a controversy in the ecclesiastical court concerning some matter wherein the Church is competent to judge (c. 1552, §1). First, it is a discussion, and this supposes conflicting claims made by two or more parties. Secondly, it is a settlement, and this is effected by the sentence of the judge. Thirdly, it is a legal discussion and settlement, i e., conducted in accordance with the rules of procedure laid down for an ecclesiastical trial in Part I of Book IV of the Code. Discussions and settlements of disputes conducted otherwise are not necessarily illegal; they simply are not ecclesiastical trials; they are extrajudicial processes. Fourthly, it is a discussion and settle­ ment of some matter wherein the Church is competent to judge, namely : With respect to the State, c. 1553 vindicates to the Church the original and exclusive right to take cognizance of: ( 1 ) All questions which involve spiritual interests, or temporal interests which are related to matters spiritual, e.g., the validity of the marriage bond in the first case, and a pastor’s right to the revenues from his benefice in the second case. (2) All violations of divine, canon, and civil law to the extent 578 TRIALS IN GENERAL 579 at least in the last ease of defining moral guilt and punishing the offender with ecclesiastical punishments, e.g., heresy; (3) All causes of those persons who enjoy the privilege of the forum, both their contentious as well as their criminal causes, provided the persons in question are the defendants, or the accused. The foregoing questions the Church judges by inherent and exclusive right (c. 1553, Si). The right is inherent because it is a postulate of the Church’s sovereignty, and therefore one which is derived from God directly, independently of the State. The right belongs to the Church exclusively in the sense that the State cannot claim concurrent jurisdiction in those questions. But, adds c. 1553, §2, in mixed questions the Church and State arc equally competent to judge, and the rule obtains that the court which first takes cognizance of the case thereby excludes the other. An example of mixed causes is a breach of promise suit in marriage cases (Code Comm., June 3, 1918; Jeta X, 345). §2. Kinds of Trials Ecclesiastical trials may be divided as follows: (1) Criminal trials and contentious trials. A criminal trial is one which has for its object to ascertain whether the law was violated, and, if so, to apply the penalty decreed for the violation (c. 1552, §2, n. 2). All other trials arc contentious trials, and have for their object either the prosecution or vindication of rights, or the declaration of juridical facts (c. 1552, §2, n. 1). To the class of contentious trials belong: (2) Civil trials, matrimonial trials and ordination trials. By a civil trial in the Church we understand any trial which has for its object the prosecution or vindication of rights to temporalities, whether the defendant is an individual cleric, religious, or novice, or an ecclesiastical moral person. Thus, if a cleric or a religious organization, or a confraternity is sued for unpaid debts, these would be civil trials. Matrimonial trials are those in which the validity of a marriage is contested, the question of legitimacy of offspring is discussed, or one spouse sues for a separation from bed and board. Ordination trials are those in which either the validity of major orders is contested, or the obligations arising from major orders arc attempted to be waived. (3) Formal trials and summary trials. This division no longer holds under the Code, except in marriage cases for which we have a lengthy solemn trial, as well as a shorter trial in which the main evidence consists of a single authentic document, as we shall see at the proper time. 580 TRIALS IN GENERAL ART. II The Competent Forum (Canons 1556-1568) Forum originally meant the place where all public affairs were transacted. Several such fora can still be found today in the Eternal City as relics of early Roman days. Later, forum designated the place where only judicial proceedings were held. Still later, and at present, it means the court, or the judge who conducts the trial. To speak of the competent forum, then, is to speak of cither the competent court or the competent judge. Moreover, by compe­ tency we mean jurisdiction with respect to certain persons, places and matters. In the preceding article wc described the competency of the ecclesiastical courts with respect to the civil courts. Here it remains to determine the competency of the various ecclesiastical courts with respect to one another. Competency of inferior ecclesiastical judges with respect to the Roman Pontiff or his courts—The Roman Pontiff being the supreme head of the Church with the fullness of jurisdiction, both legislative, administrative and judicial, can be judged by no one. Not by any individual bishop or by any council, since the Pope is the supreme bishop and is above even a general council. Not by any layman, even the civil ruler, because of the privilege of the forum. The sovereign person of the Pontiff is recognized even by international law. The judicial jurisdiction of the Roman Pontiff is not only supreme in the Church, it is likewise universal and extends imme­ diately to each and every member of the Church, all the faithful being his immediate subjects. In practise, however, the Pope docs not exercise universal judging authority but reserves to himself, or to his tribunals, only certain questions, leaving the jurisdiction of other bishops in their respective dioceses intact. (1) To himself personally the Pope reserves: (a) All causes of the supreme Christian rulers of States, of their children, and of those who have the right of immediate succession to the supreme rule, e.g., their marriage cases; (b) All causes of cardinals and papal legates; (c) ' Criminal charges against bishops (c. 1557, §1). (2) To the Roman Rota the Pope reserves: (a) Civil lawsuits against residential bishops excepting TRIALS IN GENERAL 581 lawsuits contained in the next two sentences (c. 1557, §2). If the personal goods of the bishop are sued, or the capital en­ dowment of his episcopal benefice (a situation not verified in the U. S.)—in these cases the controversy may be settled at the option of the bishop either by a collegiate tribunal of his diocese, or by the next higher court, i.e., the court of the arch­ bishop as a rule (c. 1572, §2). But where a person wishes to sue the bishop for damages by reason of a decree which he issued in an administrative capacity, the question must be taken to the competent Roman Congregation, not to the Rota (cfr. c. 1601). (b) Causes of moral persons who have no superior other than the R. Pontiff, e.g., a diocese, an exempt religion (c. 1557, §2; 1599, §2); (c) Any other questions which the Pope might commit to the Rota for judgment, e.g., those mentioned above as reserved to the Pope personally (c. 1557, §3). (3) To the Congregations at Rome are reserved the following cases, which however are tried and settled extrajudicially, unless the matter being too involved the Congregation prefers to remand it to the Rota, namely: (1) sacred ordination cases; (2) the marriage cases described in c. 1962. In addition to the above causes the Pope may reserve others to himself either in the first or second instance, and then that court will try the case which has been delegated by the Pope in each instance; this may be a court even outside of Rome (c. 1557, §3). Competency of inferior judges with respect to one another— Among the titles which determine the competency of inferior judges or lower courts as described in c. 1560, sq. we mention four: (1) domicile or quasi-domicile; (2) location of the thing in dispute; (3) contract; (4) crime. The judge of the place where the defendant has his domicile or quasi-domicile is competent on the title of forum. The rule is that the plaintiff always follows the forum of the defendant. If the defendant has several domiciles, or a quasi-domicile in addi­ tion to his domicile or domiciles, the plaintiff himself may choose among these several courts. By reason of the location of the controverted thing, action can be brought to the court of the place where the thing is situated, e.g., in trials involving benefices. By reason of crime the accused may be cited before the court 582 TRIALS IN GENERAL of the place where the law was violated, e.g., the violation of papal enclosure outside of one’s diocese. By reason of contract suit may be brought to the court of the place where the contract was concluded, e.g., in matrimonial trials. Where two or more titles of competency occur in the same case it is the right of the plaintiff to choose any competent judge, e.g., in a matrimonial trial he may institute action for a declaration of nullity in the court of the defendant’s domicile or in the court of the diocese where the marriage was contracted. If two or more judges arc competent in the same case, that judge who first begins proceedings can lay claim to an additional title of competency by reason of prevention, and thereby he excludes all otherwise compe­ tent judges. ART. Ill Lower Courts and Higher Courts (c. 1569-1607) The better to secure justice, every legal system provides means by which the proceedings of one court may be reviewed by another court. To this end courts are constituted on a hierarchical basis, i.e., some arc subordinated to others. The court in which the case is first tried is called the court of first instance. The court to which appeal is taken for the first time is called the court of second instance, or the appellate court. The court to which the sentence is appealed for the second and usually the last time, is called the court of third instance, or the supreme court. §1. Court of First Instance (c. 1572-1593) Which court this is—The court of first instance, i.e., the court to which a lawsuit must first be brought by the plaintiff, is the court of the local Ordinary, that Ordinary, namely who has compe­ tency by reason of any of the titles just listed above (c. 1572, §1). Excepted from the rule just stated arc: (1) the causes reserved to the Roman Pontiff or the Roman Tribunals in the first instance, as described above; (2) causes of exempt clerical religions, provided both the plaintiff and defendant belong to the same exempt reli­ gion, whether they are individual persons or moral persons, e.g., a religious, or province. Here the judge of the first instance in TRIALS IN GENERAL $83 centralized religions is the provincial, the judge of the second in­ stance being the general, while the S.C. of Religious gives the final decision if necessary. If, however, the plaintiff and the defendant do not belong to the same exempt clerical religion, the local Ordi­ nary’s court is the court of first instance, provided it have some title of competency in respect to other diocesan tribunals as ex­ plained above (c. 1579). Organization of the episcopal court—In every trial at least three persons must take part, otherwise a trial is impossible, namely: a judge, a plaintiff and a defendant. The judge alone constitutes the court, even though he is usually assisted by other officers. In his own diocese the bishop is the ordinary judge with origi­ nal jurisdiction. If possible, however, he should appoint a priest permanently to preside at trials in his stead. This priest is called the officialis, which term hereafter we shall render by Official em­ ploying the capital O. Since the Official is to be appointed for all trials, save those which the bishop expressly reserves to himself, he is not the bishop’s delegate, but in virtue of his office he enjoys ordinary jurisdiction even though this is not original, but only vicarious jurisdiction. However, saving those cases which occur with greater frequency, e.g., marriage cases, the Official in practise will, as a rule, confer with the bishop before presiding at a trial. The Official may be given a substitute with permanent office to act as judge in his place, and this officer is called the Vice-Official. He, too, is appointed by the bishop (c. 1573). Although the judge alone (the Official, or the Vice-Official) weighs the evidence and renders the decision, he may be assisted by other officers as concerns the gathering of the evidence, the record­ ing of the evidence, the intimating of decrees, etc. The officers who assist the judge are: the auditor, the notary, the promoter of justice, the defender of the bond, the courier and the constable. After the judge has accepted a case, he may leave all the pro­ ceedings, up to and exclusive of the sentence, to the auditor, although he may dispense entirely with this officer. It is the duty of the auditor, if appointed, to cite the parties and witnesses, to hear their testi­ mony, to examine documents, and in general to earn- the trial through to its conclusion, saving the rendering of the sentence which is left to the judge. Since the most important work in the average trial is hearing the parties and witnesses, the officer under con­ sideration is rightly called the auditor (from audire to hear). The appointment of an auditor secures greater impartiality for the judge who, being absent during the whole course of the proceedings, is immune to those influences which personal contact with the parties 584 TRIALS IN GENERAL and witnesses is likely to engender. On the other hand, the dis­ advantage of appointing an auditor lies in the fact that the veracity of those who depose in a trial is partly revealed by such circum­ stances as facial expressions, hesitancy, etc., points which escape the notice of the judge who does not preside at a trial in person. Yet, it is very convenient, and sometimes necessary, to appoint a delegated auditor to take at least the testimony of a party or witness who lives at a distance from the place of court, or who cannot come to the place of court for seme other reason. A person can be inter­ rogated in a distant diocese through a questionnaire sent to that court (c. 1580-1583; 1770). While it is optional to employ an auditor, it is not optional but obligatory to appoint a notary for every trial. It is the duty of this officer to keep a written record of each and every official act of the trial, and to be present at every session; hence his name, from notare to note down. Thus, e.g., the notary records the decree of the judge citing the parties and witnesses, he makes copies of the decrees and has them dispatched through the courier, he notes the fact that the parties and witnesses appeared on such and such a day, at such and such an hour, he records the questions proposed to them by the court, together with the answers of the deponents, etc. The office of the notary is designed to relieve the judge of much work which might distract his attention unduly from other impor­ tant duties incidental to the trial, e.g., the duty of proposing appro­ priate questions to the parties and witnesses, observing the details of their conduct in court, their facial expression in the act of deposing, their tone of voice, etc. The court notary is also called the actuary (from acta—acts), since he records the acts of the trial. The records signed by the notary constitute public docu­ ments, and the law vests them with the authority of full proof concerning the matters contained therein (c. 1585; 1813, §1, n. 3). 'I'he promoter of justice may be considered the diocesan attorney. Whenever the public welfare is at stake in contentious trials his presence is required, otherwise he need not take part in contentious trials. Thus, e.g., where public rumor considers a certain mar­ riage invalid, and scandal has resulted from the parties cohabiting, and neither party petitions a declaration of the nullity of the mar­ riage from the episcopal court, it is the duty of the promotor of justice to petition the nullity, and to bring forth witnesses and other proofs to substantiate his claims. In criminal cases the pro­ moter of justice always participates, it being his exclusive right and duty here to present the formal bill of accusation, to act as plaintiff in the trial, and therefore, to prove to the court that the accused TRIALS IN GENERAL 585 committed the crime of which he is charged, and is subject to the penalties of the law (c. 1586-1590; 1934). The defender of the bond is an officer who must intervene in marriage and ordination trials. In both cases it is his duty i.e., a proof which begets proba­ bility but not certainty. Thus, e. g., in a matrimonial trial the state­ ment of the parties made in court to the effect that they had placed a pre-nuptial condition contrary to the substance of marriage would not entirely satisfy the court, but corroborative evidence would have to be furnished through witnesses, documents, or circumstances pre­ ceding, accompanying and following the marriage which might create in the mind of the judge a presumption to that effect. An extrajudicial confession has only the force of incom­ plete proof. It is left to the court to determine in any given case the probative value of such confession. Thus, in matrimonial trials, statements made by the parties orally or in writing, e. g., by means of correspondence, provided these statements affect the case, and were made at an unsuspect time, carry great weight, e.g., if prior to their marriage they had repeatedly stated that they would resort to civil divorce in the event that they tired of the union and wished to contract a new marriage. §2. Witnesses In the average trial the chief source of proof is the testimony of witnesses. In trials where the common welfare is at stake, e.g., in matrimonial trials, witnesses may be produced not only by the parties but also ex officio by the court. In purely private litigations it is the parties alone, to the exclusion of the court, who offer witnesses (c. 1759). Persons disqualified from acting as witnesses—These fall into three categories: (1) unfit witnesses; (2) suspect witnesses; (3) incompetent witnesses. To the class of unfit witnesses belong: (1) weak-minded per­ sons; (2) persons who have not attained the age of puberty (c. 1757, §1). To the class of suspect witnesses belong: (1) those who have been sentenced for perjury; (2) those who are unworthy of belief TRIALS IN GENERAL 597 by reason of their scandalous lives; (3) public and-grave enemies of the party (c. 1757, §2). To the class of incompetent witnesses belong: (1) the parties to the trial, or their representatives, i.e., procurators, guardians, etc.; (2) the officers of the court; (3) priests with reference to information gained through sacramental confession; (4) a married person with respect to his or her spouse; (5) blood and law rela­ tives of the partv in all the degrees of the direct line, and in the first degree of the collateral line, but these may testify in matrimonial trials (c. 1757, $3). Examination of the witnesses—Having been duly summoned, and having appeared in court, the witnesses before answering the questions proposed by the judge must first take an oath to speak the truth, unless purely private interests are at stake and both parties agree that the witnesses be heard unsworn. Likewise, unfit and suspect witnesses if admitted ought to be heard unsworn. Witnesses may be put under oath to observe secrecy concerning the questions proposed to them, and the answers they gave, until the acts of the trial arc published (c. 1767-1769). General questions precede particular ones. Thus, the witness is first questioned concerning his name, residence, religion, occupa­ tion, age, connection with the party for whom he is testifying, i.e., whether hr is a relative, intimate friend, mere associate, etc. The answers to these general questions help the judge to appraise the value of the witness's testimony. Then follow the particular ques­ tions bearing specifically on the controversy at issue, e.g., in matri­ monial trials: whether it is true that the parties made such and such statements prior to their marriage: did the groom give presents to the bride; did the parties show signs of joy on the wedding day; did the one leave the other on the wedding day itself; was the wed­ ding followed shortly afterwards by quarrels, etc. Finally, the witness must always be questioned concerning the source of his knowledge, i.e., whether it is first-hand knowledge, or only hearsay knowledge (c. 1774). Witnesses must testify in the place of court. Excepted from this rule are: (1) persons of distinction (personae in dignitate con­ stitutae); (2) those who arc prevented from appearing in court by reason of some physical impediment, e.g., illness; (3) those who live at a great distance from the court. In such cases the judge cither goes to these persons, or he delegates a priest to go to them and receive their testimony. Such a priest, even though of a distant diocese, may be called a delegated auditor ad actum (c. 1770). 598 TRIALS IN GENERAL Witnesses are questioned only by the judge, not by the parties, nor by the defender of the bond, the promoter of justice or the parties’ lawyers. However, all these are permitted to, and the de­ fender of the bond and the promoter of justice must formulate ques­ tions, articles or points, upon which the witnesses may be questioned by the judge (c. 1773). Obligation to testify—Witnesses who are lawfully summoned must appear and testify, or at least explain (orally, or by letter) why they cannot appear. Against the contumacy of a witness to testify, the court may employ suitable spiritual penalties, though this is not always advisable, especially in the case of the laitv (c. 1766). Excused from the obligation of testifying are: (1) priests in reference to extra-sacramental, i.e., professional secrets, for with reference to sacramental secrets they arc absolutely incompetent as wc saw; (2) civil officials, midwives, physicians, lawyers, notarieand all other persons who arc held by law to professional secrecy, and provided the questions which are proposed relate to such secrets; (3) those who have just reason to fear that grave harm will result to themselves, or to their near kin, if they appear as witnesses (c. 1775). Appraisal of testimonial evidence—The testimony of two con­ cordant sworn trustworthy witnesses furnishes full proof, i.e., proof sufficient to create in the mind of the judge moral certainty (c. 1791, $2). Even one witness suffices to furnish this proof if he is a qualified witness, i.e., a person who testifies to matters falling within the range of his official duties, e.g., the findings of a hand­ writing expert, the conclusions of a physician, etc. (c. 1791, §1). The testimony of two witnesses suffices when they testify to the same fact. This need not be the main fact at issue, e.g., whether the bride contracted marriage under the influence of reverentia’ fear. Usually the fact is only one of a chain leading up to the main fact at issue, e.g., whether on a certain day the father locked the girl in her room as alleged, whether he struck her blows, whether he threatened to disinherit her unless she married the man of his choice, whether on the wedding day the bride appeared sad, etc. In appraising the value of testimonial evidence the judge must apply not only the numerical criterion (two concordant witnesses), but also the moral, mental and material criterion, as explained in c. 1789. The moral criterion is intended to discover the trustworthi­ ness of the witness, and to this end the judge will consider the personal character of the witness, e.g., whether he enjoys a good TRIALS IN GENERAL S 99 reputation, whether he has religious beliefs, etc. The mental cri­ terion serves to learn the reliability of the witness. To this end the judge will inquire into the source of the witness’s knowledge, i.e., whether he testifies ex scientia propria, e.g., did he actually see the father strike his daughter, or lock her in her room, etc.; or whether he testifies rx credibilitate, i.e., whether his statements merely reflect his opinion; or whether his testimony is de fama, i.e., knowledge gained from rumor; or, finally, whether it is merely de audito alieno, i.e., hearsay knowledge. In applying the material criterion the judge will consider the manner in which the witness deposed, e.g., whether he was hesitant, contradictory, hasty, evasive, etc. The challenging of witnesses—The party against whom a witness testifies has the right to challenge his testimony. If the person of the witness is to be challenged, e.g., because the law excluded him from testifying, this objection must be entered within three days after the interested party is notified of the name of the witness (c. 1764, §4). If the testimony itself is challenged, e.g., because of contradictions, falsehoods, obscurity in the making of statements, etc., this can be done at any time prior to the rendering of the final sentence (c. 1783). It should be noted here that the names of witnesses who testify against him need not be communi­ cated to a partv until the probative stage of the trial comes to an end (c. 1763). §3. Experts (c. 1792-1805) The testimony of experts is sometimes required by the law; at other times it is left to the judge whether or not to employ them. The law, e.g., requires the presence of physicians and mid-wives in impotency and ratum et non-consummatum cases. Where insanity is alleged to have invalidated a marriage, an alienist will be called in. Where the authorship of a document is disputed, a handwriting expert will be questioned, etc. In addition to possessing the qualifications required of ordinary witnesses, experts must furnish an authentic certificate of compe­ tency. They may be challenged by cither party to the trial for the same reasons as ordinary witnesses may be challenged. An expert must make a detailed written report of his findings and present it to the court, stating his opinion and the reasons which have led him to form such opinion in the case. Not only the compe­ tency but also the trustworthiness of the experts, as well as all 600 TRIALS IN GENERAL other circumstances we mentioned in the case of ordinary witnesses, must be taken into consideration by the judge when appraising the value of their statements. §4. Judicial Inspection At times the judge will find it necessary or convenient to per­ sonally inspect the material object of the controversy. This may be done by having the thing in dispute brought to the court, or if this is not possible, the judge himself or his delegate may go to the place and perform a local inspection. Thus, local inspection is often decreed to ascertain the amount of damages, or whether (in criminal trials) the enclosure of a monastery has been violated, or a cemetery has been profaned, etc. (c. 1806-1811). §5. Documents To ascertain the value of documentary evidence in ecclesiastical trials one must distinguish between public and private documents. The principal public documents in the Church are : ( 1 ) the acts of the Roman Pontiff, of the Roman Curia, and of Ordinaries, which the}' have drawn up in the discharge of their official duties; (2) the records of an ecclesiastical court; (3) the entries of baptism, confirmation, ordination, religious profession, marriage and death as found in the registers of the diocesan Curia or the parish; (4) authentic copies of all the above; (5) documents drafted by public notaries. The ecclesiastical court will also consider as public documents those which the civil law of the place regards as public civil documents. Private documents, on the .other hand, are letters, contracts, last wills and other instruments which have been written by private individuals, or by public officials, but in the capacity of private individuals (c. 1813). Concerning the probative value of documents, canon law re­ gards every public document as complete proof of the statements which the document directly and principally contains. Thus, e.g., a baptismal certificate issued in authentic form, i.e., with the signa­ ture of the priest who issues it, the seal of the parish, and the annotation of date of issuance, is full proof of the fact that baptism was conferred. But should the baptismal register contain a marginal note asserting illegitimacy, on such point the register, or the au­ thentic extract, will not be considered full proof, because baptismal inscriptions are made directly and primarily as records of baptism, not of other facts. Private documents, on the other hand, have only the probative value of an extrajudicial confession so that it belongs TRIALS IN GENERAL 601 to the judge to appraise their value in each individual case (c. 18141817). Just as a witness may be challenged so too may a document be. The interested party who feels his cause adversely affected by a document may always object to the same. The judge may chal­ lenge a document only in trials where the public intcre-t and wel­ fare are at stake. A document may be challenged for various rea­ sons, e.g., as not authentic, i.e., not written by the reputed author ; as not entire because of abrasions, interpolations, etc.; as invalid because not vested with the formalities required by the law in the case of public documents; as false because of contradictory state­ ments contained therein, etc. When exception is taken to a document the matter is reviewed by the court as an incidental question, and settled by the so-called interlocutory sentence (c. 1815, 1818). §6. Presumptions (c. 1825-1828) A presumption is the probable conjecture of an uncertain fact. If the law itself conjectures the fact we have a presumption established by law {praesumptio juris) ; if the judge conjectures the fact we have what the Code calls a praesumptio hominis. Legal presumptions arc called praesumptiones juris simpliciter if it is allowed to overthrow them by direct proof to the contrary; whereas praesumptiones juris et de jure are those presumptions which cannot be challenged save only by indirect proof. Most legal presumptions are praesumptiones juris simpliciter, e.g., a person under the age of seven is presumed to lack the use of reason (c. 88) ; baptism once conferred, and a marriage once contracted, are presumed valid (c. 1070; c. 1014); a woman's husband is presumed to be her child's father (c. 1115), etc. Direct proof against a presumption is that which attempts to prove the presumption itself unreasonable in the present case while admitting as true the fact upon which the presumption itself is based, e.g., by proving that the woman’s husband was absent from home for ten consecutive months prior to her child’s birth. Indirect proof is that which denies the fact upon which the presumption is founded, e.g., if it can be proved that the man is not the woman’s husband. Praesumptiones juris et de jure are less numerous, nor are canonists agreed as to which pre­ sumptions contained in the Code really belong to this category. It is certain, however, that the presumption established in c. 1904. to the effect that a matter which has become irrevocably adjudged by the court is a true and just decision, belongs to that class. 602 TRIALS IN GENERAL Praesumptiones hominis, as was said, are those which the judge himself forms in the course of the trial. They are frequently re­ sorted to in matrimonial trials where the validity of a marriage is contested on the grounds of defective consent. Since no man can read another’s mind, the absence of consent can at the most be only conjectured. Thus, the circumstances preceding, accompanying and following the wedding will be considered by the court. If, e.g., the plaintiff can prove that prior to his marriage he repeatedly had stated that he was opposed to the union ; if on the wedding day itself he showed no signs of joy; if immediately following the wedding he deserted his spouse, etc., circumstances such as these will go far to create in the mind of the judge a presumption that true marital consent was withheld from the very beginning as alleged. As to the probative value of presumptions we must distinguish between legal presumptions and judicial, or human, presumptions. A legal presumption relieves the party whom it favors of all burden of proof. Thus, the party who asserts his marriage to have been invalid must prove his claim, since the law presumes that every mar­ riage which is contracted in legal form is valid. Here the presumption of law is in favor of the defendant. The presumptions of the court, on the other hand, are not in themselves conclusive proof but only supplementary proof, which, when added to other evidence sub­ mitted in the course of the trial, suffice to justify a decision of the court, supposing the evidence in itself was insufficient to create moral certainty in the mind of the judge. §7. Oaths The oaths of which the Code speaks here are not to be con­ fused with the oath of which we have already spoken, namely, the assertory oath to tell the truth which is administered to the parties and witnesses before they testify in court (cfr. p. 594,597). The oaths under present consideration arc proofs in themselves, sometimes partial proofs, sometimes conclusive proofs. They are three: (1) the supplementary oath; (2) the estimator}' oath; (3) the decisive oath. In order to pass sentence there must be sufficient evidence present to create in the mind of the judge moral certainty concerning the issue to be settled, otherwise the case is dismissed in favor of the defendant. However, the judge may depart from this rule, and either upon his own initiative, or at the request of either party, administer the so-called supplementary oath to settle the contro- TRIALS IN GENERAL 603 vcrsy. The party who then takes the oath to the effect that he thinks the case ought to he decided in his favor, wins the case. It is understood that no party can at his own request take this oath, but only at the request of his adversary, or at the instance of the court (c. 1829-1831). In a suit to recover damages the judge may administer the estimator)· oath to the defendant in order to determine the amount of the damages incurred (c. 1832-1833). With the intervention of the judge one party may in the course of the trial propose that the other take an oath expressive of his opinion concerning the controverted issue. Such an oath terminates the controversy in favor of the party who takes it. It amounts to a sentence, and is therefore called the decisive oath. It differs from the supplementary oath in this that the decisive oath is always voluntary while the supplementary oath is obligatory, being imposed by the court (c. 1834-1836). Others never decide marriage cases. ART. VI Final Stage of the Trial The final stage of a trial comprises: (1) the publication of the acts; (2) the pleadings; (3) the sentence of the court; (4) appeals and other forms of redress against the sentence; (5) the execution of the sentence. §1. Publication of the Acts Unlike civil trials, ecclesiastical trials are conducted in com­ parative secrecy. Saving civil cases, the parties seldom confront their own witnesses, or those of the adversary. Even the witnesses arc heard one at a time, and arc often put under an oath of secrecy not to reveal the questions proposed, or the answers given, until the close of the trial. To insure justice under this system of secrecy, the notary has the duty of recording each and every official act of the trial, and preserving the documents and other proofs which have been sub­ mitted. Since neither party has any definite knowledge of how the witnesses testified for or against him, or what documents and other proofs were submitted to weaken his case, etc., in order that he may be given an opportunity to argue or plead his case before sentence is passed, all the acts of the trial must eventually be published. This is effected by a decree of the judge ordering that 60+ TRIALS IN GENERAL the acts be published or that copies thereof be given to the parties, and to the promoter of justice and the defender of the bond if these took part in the trial. In the same decree the judge usually fixes a term within which the parties, after examining the acts, may produce new witnesses, or may challenge the admissibility of adverse proofs which have been submitted. L’pon the expiration of thr term the judge issues a decree stating that the probative period of the trial is closed. This statement is called the conclusio in causa (c. 1858-1862). §2. The Pleadings (c. 1862-1867) The official closing of the case is followed by the pleadings of the parties, i.e., the defense and discussion of their case. In ecclesi­ astical trials there is no public arguing of one’s case in open court. The defense is prepared entirely in writing. The parties are usually assisted by their lawyers in this respect, especially in matrimonial trials where the laity arc not acquainted with the intricacies of canon law, but require the assistance of ecclesiastical lawyers. In preparing a defense for his client the lawyer will first state his case in jure, i.e., he will point out the various canons of the Code, the opinions of eminent canonists, and (if any) the decisions of the Rota relevant to the subject at issue. Next he will discuss the facts of the case, i.e., he will argue the case in facto, showing how the various facts adduced by his client are true and bear upon the case, that the statements of the adversary or his witnesses are false, contradictory, irrelevant, etc. He will then draw up his conclusions favorable to his client. The judge has the right to limit the defense lest it become too extensive. In matrimonial trials the defense ought not to exceed 20 printed pages as a rule. In matrimonial and ordination trials the defender of the bond prepares his own written defense. In criminal trials wherein he takes part, the promoter of justice must plead his side of the case in writing. The judge may fix the term within which the defenses must be prepared. In time each party communicates to the other through the agency of the court a copy of his prepared defense. Then, after careful study, each party has the right to submit to the court a written rejoinder to the written defense of his adversary. In matrimonial trials this rejoinder ought not to exceed 10 pages as a rule. TRIALS IN GENERAL 605 Only by way of exception is the party or his lawyer (also the defender of the bond and the promoter of justice) allowed to discuss orally certain points in open court, points which cannot be easily clarified on paper. But this discussion should be as brief as possible, and no oratorical display is allowed. §3. The Sentence (c. 1868-1877) Before passing sentence the judge (or judges in a collegiate tribunal) must have been present at the various sessions, or if an auditor conducted the trial, it will at least be necessary for the judge or judges to examine the acts of the trial and the written defenses and rejoinders of the parties, and of the promoter of justice, or the defender of the bond, if these officials participated in the trial. In evaluating the evidence and the pleadings, much is left to the conscience and judgment of the court, unless the law has its own ruling concerning the probative value of this or that form of proof. In a tribunal of one judge, he alone formulates the written sentence. In a collegiate tribunal, each judge writes out his opinion, having studied the law and the facts of the case from copies of the acts of the trial, of the written defenses of the parties and their rejoinders. Six or seven copies of all the acts are sometimes ordered made by the court in marriage trials. On the day appointed by the presiding judge these associate judges convene with him, and in turn each reads his written opinion. The majority opinion pre­ vails, although oral discussion is permitted among them, and in the course of this a judge is allowed to change his written views The sentence, when no further discussion is offered, is formulated by the judge who in the beginning of the trial was appointed the ponens, and it should contain the reasons both in law and in fact for the decision. The Official or presiding judge from the very start of the trial appoints the ponens; he can appoint himself the ponens. The ponens at his leisure uses the material of the majority opinion in formulating the sentence which at a later date is signed by all the judges. The sentence may be published in three ways: (1) by citing the parties to the court room and reading the sentence to them : (2) by informing the parties that they may have access to the origi­ nal draft of the sentence contained in the records of the court, and may come and read the sentence for themselves: (3) by mailing them a copy of the sentence. The sentence should also determine the judicial expenses. As a rule the costs ought to be borne by the loser in the trial, but 606 TRIALS IN GENERAL in practise the costs are distributed equally between both parties, especially when both a'cted as plaintiffs in a marriage trial. The poor should be given gratuitous service, unless they are not entirely destitute, in which case they may be asked to give what they can. In ecclesiastical trials the judge pronounces both on the law and the facts. There is no jury of laymen to pronounce on the facts. The jury idea in civil law supposes that sovereignty resides in the people and that they arc competent to judge concerning facts. In church trials the laity, while not considered incompetent to judge the facts, are simply devoid of sovereign jurisdiction, all authority by divine law in matters sacred having been conferred by Christ upon the Pope and the bishops as successors of the Apostles. The Church has not seen fit to share this authority with the laity so far as trials arc concerned, but their judicial authority the Pope and bishops share only with the clergy. §4. Redress Against the Court Sentence Canon law recognizes especially three remedies or escapes from a possible unjust sentence of the court: (I) appeal; (2) complaint of nullity; (3) reinstatement. A. Appeal (c. 1879-1891) Against a sentence which be believes to have been unjust, be­ cause the court misinterpreted the law, or misjudged the facts of the case, or the proofs, the aggrieved party may appeal to the court of next higher instance. But no appeal lies: ( 1 ) From the sentence of the Roman Pontiff or the Apostolic Signatura ; (2) From a sentence which has become irrevocably adjudged, although in this case reinstatement is possible, as we shall sec ; (3) From a sentence of the judge who has been delegated by the Roman Pontiff with the clause: appellatione remota; (4) From an invalid sentence, since in this case the aggrieved party rather makes a motion for a new trial, as we shall sec; (5) From a sentence which was based upon a decisive oath. For other instances in which the law denies appeal, cfr. c. 1880. Where only private interests are involved, there is no need for the aggrieved party to appeal, as is obvious; no one is required TRIALS IN GENERAL 607 to exercise this privilege. But in matrimonial and ordination trials, if the court decided that the marriage or the ordination was invalid, the defender of the bond must appeal the decision.' When appeal is taken it must be presented to the court which passed the sentence. The court will forward the original or copied acts of the trial to the court of appeals within 30 days after re­ ceiving notice that the right of appeal is being requested and in­ voked. The party must file his appeal within ten days after receiving notice of the unfavorable sentence. Tempus utile is contemplated here, which does not transpire for one who is ignorant of his right, or cannot exercise it. If the ten days are culpably allowed to transpire, the aggrieved party loses his right to appeal, the case be­ comes irrevocably adjudged, the sentence can then be executed, and the only redress permitted thereafter is in the form of reinstate­ ment. The appellant may not change his title in law when prose­ cuting the case in the court of appeals, c.g., to contest his marriage on the grounds of impotcncy if in the first instance he had pleaded defective consent. Every appeal is granted in suspensive» saving appeals from censures (c. 1889, 2243). In some cases the judge may grant provisional execution to the sentence for very grave reasons and safeguarding the right of the party to be indemnified if the court of appeals reverses the sentence, c.g., in a criminal trial where the accused was sentenced and deprived of his benefice (c. 1917, §2. n. 2). B. Complaint of Nullity One cannot appeal from an invalid sentence for the simple reason that the sentence is considered non-existent. It cannot, like a valid sentence of the lower court, be reversed or confirmed, for it does not exist. In such a case the law allows redress which con­ sists in a motion for a new trial {quaerela nullitaiis), cfr. c. 1892. The sentence of the court may have been void for various reasons, c.g., the court lacked jurisdiction, or an essential formality was neglected such as the citation of the defendant. Canons 1893, 1895 allow a grace of ten days or thirty days to enter a motion for a new trial depending on the nature of the error. The motion for a new trial must be presented to the court which pronounced the invalid sentence, but the party who is inter­ ested may ask for a substitution of judges. The sentence of the new trial, if valid, can be appealed. 608 TRIALS IN GENERAL C. Reinstatement (c. 1902-1907) If a sentence has become irrevocably adjudged (res judicata), the law prohibits appeal. Canon 1880 lists the cases where one cannot appeal from a sentence, and these cases arc repeated in c. 1902, e.g., if one did not avail himself of the right to appeal within the time permitted, or it may be that the higher court has confirmed the sentence of the lower court, etc. But suppose wew facts are discovered later on which show the sentence to have been evidently unjust. In this case the aggrieved party, while he cannot put in an appeal, nor the motion for a new trial based upon the supposition of an invalid sentence, may ask for a reinstatement (restitutio in integrum). The law will then place him in the same condition in which he found himself originali)' at the start of the trial, i.c., he is allowed a new trial, governed not by the principles of the quaerela nullitatis, but by the principles of law covering the restitutio in integrum as follows: Reinstatement is not granted save within these limits: (1) It must be petitioned within four years from the moment it could apply; (2) The original sentence must have been evidently unjust cither: (a) because it was based on false documents offered in the trial; or (b) new documents were discovered later on which revealed new and relevant facts sufficient to warrant a contrary decision; or (c) the sentence was the effect of fraud perpetrated by the adversary, e.g., he bribed witnesses; or (d) some precept of the law was grossly ignored. Commentators are not agreed as to the meaning of this last condition. As a general rule, reinstatement should be requested of the court which passed the sentence in the first instance. Should the favor be granted, a new trial will be begun, and from the sentence rendered in this trial a new appeal is admitted. Should the favor be denied, the petition for reinstatement may be taken to the court of appeals. §5. Execution of the Sentence (c. 1917-1924) A sentence cannot be put into execution until it has become irrevocably adjudged in the sense explained above. It is the right of the court of the first instance to execute the sentence even though it was appealed and confirmed by a higher court. The judge does TRIALS IN GENERAL 609 not execute the sentence, but this is left to the superior with executive (administrative) jurisdiction, e.g., the bishop. Against those who refuse to obey the sentence of the court the Ordinary shall first proceed by way of warnings and precepts, later resorting to censures if need be. Sometimes the civil courts may he invoked to execute the sentence of the ecclesiastical court, (cfr. p. 19-20). Chapter II CIVIL TRIALS IN PARTICULAR Civil ecclesiastical trials belong to that class of contentious trials which have for their object the prosecution or the vindication of property rights. In particular, a civil ecclesiastical trial is one in which the plaintiff brings suit against a cleric, religious or novice, or against a moral ecclesiastical person in some matter involving rights to temporal goods, i.e., in which he sues for the retention, acquisition, or recovery of the title of possession or ownership to temporal goods, the payment of debts, or compensation for damages suffered, or questions a cleric’s title to a benefice. The Code docs not employ the term civil trials, but refers to the trials under consideration as contentious trials in which only private interests are at issue. The term civil trials has been dropped probably to avoid confusing these trials with non-criminal trials conducted in the secular courts of the State. The term, however, was commonly employed by pre-Code canonists in the sense explained in the preceding paragraph, and if we resume its use here, it is simply a matter of our own choice to substitute for the more lengthy terminology of the Code. Civil trials in the Church arc conducted in accordance with the general rules of procedure contained in Part I of Book IV of the Code, a summary of which we have described in the pre­ ceding chapter. At this place it suffices to point out a few character­ istics proper only to civil trials, characteristics which are not usually verified in the case of criminal, marriage or ordination trials. It is peculiar of civil trials that they can be avoided in two ways: (I) by compromise; (2) by arbitration. By compromise (transactio) we understand the peaceful settlement of the dispute outside of court by a priest designated by the ecclesiastical judge. Here the priest need follow no special rules of procedure but, after hearing the arguments of each contending party, he gives a decision r.r bono et aequo. Settlement by arbitration {compromissum in arbi­ tros) is effected when at the mutual agreement of the parties their controversy is committed to an individual of their choice. The individual so chosen may proceed by way of a formal trial, or summarily, depending on the terms of the contract agreed to by 610 CIVIL TRIALS 611 the parties. Since both compromise and arbitration are in the nature of bilateral contracts, whatever the civil laws of the respective nations rule concerning these kinds of contracts must be observed likewise at this place. But the Church does not permit compromise or arbitration in a criminal trial, nor in a marriage trial, for here we find questions which concern the public welfare, and which cannot be settled by private individuals. Neither can compromise or arbitration apply to a dispute concerning the title to a benefice, since the title to a benefice cannot be conferred by one private indi­ vidual upon another, but only by the competent ecclesiastical su­ perior. Hence, if the Ordinary consents to the compromise or arbitration in this case, it will be allowed (c. 1925-1932). Unlike matrimonial, ordination and criminal trials, the parties to a civil trial arc usually permitted to confront each other and their own and the adversary’s witnesses. Neither the defender of the bond nor the promotor of justice need take part. It is not neces­ sary that the parties employ lawyers, or have lawyers appointed by the court. 'I'he parties may omit preparing written defenses of their case after the probative stage of the trial is closed, and they may leave it to the conscience of the judge to render a de­ cision simply on the strength of the evidence which has been submitted during the course of the trial. The parties may dispense by mutual agreement from the necessity of having the witnesses heard under oath. The judge cannot propose questions of his own to the witnesses,, but only such as are suggested by the parties or their lawyers, saving the case where the judge does not understand the nature of some piece of evidence which has been submitted. Finally, the joining of the issues in civil trials is usually more in­ volved than in other kinds of trials. Civil trials are comparatively rare in ecclesiastical courts: (1) because they arc often avoided by means of compromise or arbitra­ tion; (2) because questions involving temporal rights arc settled by the ecclesiastical courts only in the case of those defendants who enjoy the privilege of the forum, so that if the defendant i; a layman the cleric must sue him in the secular courts: actor sequi­ tur forum rei; (3) because in the U. S. contrary custom permits a layman to sue a cleric in the secular courts in purely temporal questions, so that the only civil suits reserved to the ecclesiastical courts are those in which both defendant and plaintiff arc moral ecclesiastical persons, or individual persons who enjoy the privilege of the forum. Thus, a civil trial in the diocesan tribunal might be requested to determine which of two parishes with similar names is the real beneficiary mentioned in a pious legacy. Chapter III CRIMINAL TRIALS IN PARTICULAR A criminal trial has for its object the legal discussion and settlement of a criminal charge with the view to inflicting or de­ claring an ecclesiastical punishment. The object of every criminal trial is an offense {delictum), i.c., the violation of an ecclesiastical law which carries a penal sanction, e.g., heresy, enrollment in forbidden societies, marriage attempted by a cleric in major orders, apostacy from one’s Order or Congregation, etc. Only public offenses justify a criminal trial. An offense is public which has been divulged, or which has been committed under circumstances that make it probable it will soon become divulged (c. 1933; and 2197, n. 1). Criminal trials follow the general plan common to other trials, but in four respects they differ somewhat. Wc shall consider, therefore: (1) the preliminaries to a criminal trial: (2) the con­ struction of a criminal trial; (3) criminal trials in clerical exempt religions; (4) some doubtful points of law. ART. I Preliminaries to a Criminal Trial These may be reduced to three: 1) an investigation into the charges prior to the opening of the trial; 2) the reprimand of the delinquent; 3) the formal bill of accusation. § 1. Th E I NV ESTIGATION (c. 1939-1946) Where the offense is public, certain and notorious, the prelimi­ nary inquest into the charges is unnecessary, and the promoter of justice at once formulates his bill of accusation. This, however, is seldom the case. 612 CRIMINAL TRIALS 613 Usually, charges reach the Ordinary through hearsay, rumor, general talk, or by private denunciation on the part of some indi­ vidual, i.c., a private accusation. If the Ordinary in such cases were to proceed at once against the accused, there might he danger that the good name of the latter would suffer unjustly by false accusations. Hence, the law calls for a secret investigation, and even this is out of place, unless, there arc grave arguments present indicating the probability of an offense, for the good name of the accused can suffer equally by even secret investigations, if the charges carry with them no solid credibility. Hence, no weight ought to be given, e.g., to unsigned letters of denunciation, or to charges made by garrulous, or vile and untrustworthy persons. But where the accusations seem probably true, because, e.g., supported by details of time, place, frequency, and other circum­ stances surrounding the alleged offence, the Ordinary can authorize the secret preliminary investigation. For this purpose he will usually delegate one of the synodal judges. Nor should he always appoint the same priest as investigator to discharge these unpleasant duties, lest the latter become the object of general opprobrium. The investigator is bound to secrecy of office. In fact, he wilj take an oath to observe secrecy and to perform his duty faithfully. He has a right to expect help from those who made denunciations, and demand that they furnish him with the names of witnesses, with documents, or other forms of proof. He will in turn put all persons he questions under oath to maintain secrecy. When questioning witnesses he will observe the same rules of procedure as obtain in the ordinary trial, e.g., as regards the oath to speak the truth, to maintain secrecy, the admissibility and non-admissibility of certain types of witnesses, etc. (c. 1944). The investigation is conducted in secret outside of court, and the accused is generally not approached at this stage. When the investigator thinks that no further evidence is avail­ able or required, he submits the acts of the investigation to the Ordinary. After studying the acts of the investigation the Ordinary must do one of three things: 1) if he concludes that the charges arc altogether unfounded, he will issue a decree to that effect, place the acts in the secret archives of the diocese, and consider the whole affair closed; 2) if there are indications of an offense having been committed but not sufficient to justify imperiling the good name of the accused by commencing a public criminal trial, the Ordinary will again file the acts of the investigation in the secret archives, but he may hear the accused, and if the case so warrants, he may administer an admonition and even place him under surveil­ 61 + CRIMINAL TRIALS lance; 3) if in the judgment of the Ordinary the investigation es­ tablishes the crime as certain or at least very probable, both in respect to its author and to moral imputability, he will generally call the accused before him with a view to soliciting a confession (c. 1946). §2. Reprimand of the Delinquent Since it is the mission of the Church to heal rather than to bruise, to correct rather than to punish, a criminal trial may not be begun, generally speaking, if the accused pleads guilty. The opportunity to confess his guilt is given the accused before the com­ mencement of the trial, i.e., when he is invited (not cited) by the Ordinary, at the end of the investigation, to explain the charges preferred against him. Should the accused plead guilty at this interview, the Ordinary, in addition to administering a salutary rebuke, may impose some penance or remedial penalty which he deems appropriate to repair any scandal which the accused may have given, and to satisfy for any injury done, e.g., that the delin­ quent retract certain statements, that he make a public apology, etc. (c. 1947, 1952). However, the reprimand may not be substituted, and the trial must take place in these cases: I ) In crimes which the law punishes with the severe penalties of excommunication reserved specialissimo modo or speciali modo to the Holy Sec, or with privation of benefice, with infamy, deposition or degradation (c. 1948, n. 1); 2) In crimes which the law punishes with latae sententiae penalties, for here the penalty has already been incurred and it must be so declared in the criminal trial (c. 1948, n. 2) ; 3) In those cases in which the Ordinary judges that a rebuke will be insufficient to repair the scandal or injury done (c. 1948. n.3); 4) If the offender has repeated a crime after being twice rebuked (c. 1949) ; 5) If the accused denies his guilt (c. 1954). If the accused pleads guilty, the trial, where called for, is very short and a mere formality, proof other than his confession being hardly necessary. §3. The Bill of Accusation The third requisite preliminary to a criminal trial is the bill of accusation. This is equivalent to the supplex libellus, or bill of CRIMINAL TRIALS 615 complaint in other trials, and in it the promoter of justice enumer­ ates the charges against the accused, quotes the law establishing the charges as penal offenses, and calls upon the court to cite the accused and institute the canonical trial (c. 1955). The promoter of justice is not permitted to formulate and present the bill of accusation until he has been authorized to do so by the Ordinary. When authorizing the promoter of justice to proceed, because judicial reprimand cannot be substituted for the trial, the Ordinary will at the same time hand over to him the acts of the investigation, and from these acts the promoter of justice gathers his material for the drafting of the bill of accusation (c. 1954). ART. II Construction of the Criminal Trial Once the promoter of justice has submitted to the court the bill of accusation, the criminal trial proceeds in the manner of Other trials (c. 1959). Only a few points arc peculiar to the pro­ ceedings which need be noted here. The accused is never put under oath in the trial lest he be tempted to perjury (c. 1744). He is bound to have a lawyer either of his own choice, or one appointed by the court (c. 1655, §1). The plaintiff in criminal trials is the promoter of justice, the defendant is the accused. The promoter of justice has the right to be invited and to be present at every session, and to formulate questions to be proposed by the court to the accused and the wit­ nesses. He may call in witnesses of his own, and submit any other legitimate proof to substantiate the offense and the guilt of the accused. He may challenge the witnesses and other proofs offered by the accused. In the first session at which the bill of accusation is read to the accused to the end that by admitting some counts and denying others a joining of the issues may be reached, it may happen that the accused pleads guilty to all the charges, even though he refused to do so before, e. g., because he had no idea of the evidence at hand against him. or he has undergone a change of heart. Here, there is still room to administer the official reprimand and to dis­ continue the trial, if the case is one which does not forbid that the reprimand be substituted, as seen above (c. 1950). But should the accused persist in denying the charges, it will be necessary for the 616 CRIMINAL TRIALS promoter of justice to have the witnesses formally cited who testified during the preliminary investigation, and to call in new witnesses if such are necessary to overthrow or weaken the arguments which the accused may offer during the course of the trial. When the judge finally decrees that the probative stage of the trial should he brought to a close he issues a decree to that effect. The accused has the right to examine the arguments which militate against him, and with the aid of his lawyer to prepare a written defense of his innocence. In like manner the promoter of justice prepares his written argumentation in an attempt to find the accused guilty. These defenses are exchanged through the medium of the court, and the accused as well as the promoter of justice has the right to prepare a written rejoinder to the defense of the other. On the day appointed by the presiding judge, the court convenes and passes sentence, each judge having studied the acts of the trial, and the written defenses of the accused and the promoter of justice. Criminal trials arc conducted by a collegiate court of three or five judges depending upon the nature of the penalty involved (cfr. c. 1576). In offenses of a more serious nature the Ordinary, once a trial has been instituted, has the right to forbid the accused to receive holy communion publicly, and if a cleric, to forbid him the exercise of the sacred ministry, should this be deemed necessary to avoid scandal (c. 1956). Moreover, the Ordinary may direct that the accused leave the town, or parish, and retire to some other designated place for the time being if there is fear that he might intimidate or bribe the witnesses, or in any other way obstruct the course of justice (c. 1957). In connection with criminal trials the question arises whether the court must reveal to the accused the names of the witnesses who testified against him. Some authors assert that this is obligatory just as in any other trial, for how otherwise could the accused defend himself or challengethe trustworthiness of his accusers? Others would permit the court to withhold the names, either because such is the practice of the Rota, or because the court usually has ways of ascertaining if the witnesses are manifest enemies of the accused, or because hard feelings must be avoided as far as possible, or because few witnesses would testify in the event their names were published for fear of possible lawsuits based upon defamation of character, or for fear of other recriminatory acts on the part of the accused (cfr. Hughes, James A., “Witnesses in Criminal Trials”: C. U. Press, 1937). CRIMINAL TRIALS 617 At the present day criminal trials are the exception in the Church. Laymen are probably never brought to court due to our separation of Church and State system, with possible appellatio tamquam ab abusu involvements. For them there is another court, namely, the court of conscience. Delinquent clerics, on the other hand, are effectively corrected and restrained in most cases either by penances, or by those penalties which can be threatened by way of precept, and indicted extrajudicially by way of decree as we shall see. ART. II) Criminal Trials in Clerical Exempt Religions In these religions it is only the major superiors who can set up court. They need not preside at trials in person, but may appoint a delegated judge, assigning him two or four associate judges according to the nature of the case. Appeals are taken from the provincial’s court to the general's court, and from the abbot’s to the archabbot’s court. The trial is constructed with the same formalities as the ordinary criminal trial described in the preceding article, and so the major superior must also appoint a notary and promoter of justice. But in the dismissal of a religious with perpetual vows, the special preliminaries antecedent to the trial must be observed as described on p. 386. ART. IV Some Doubtful Points of Law Canon 1933, §4 states that no trial is needed to inflict the penalties of excommunication, suspension and interdict, but these the Ordinary can impose extrajudicially by way of precept. That means the Ordinary has first issued a command to some individual enjoining a particular duty, and threatening one of the above penalties in the event of disobedience. It is only necessary that in these cases the offense be certain. Some doubts arise in connection with this canon, and they have not been settled as yet by the Holy See, so that canonists are still divided in their opinions, namely: 1 ) Can the superior apply extrajudicially the above three penalties if these have been established by the common law for the offense in question? 618 CRIMINAL TRIALS 2) Can the superior impose suspension by way of precept, intending the suspension as a vindictive penalty rather than a censure? 3) Docs c. 1933, §4 contain an exhaustive list of penalties that can be applied outside of a court trial ? Could the superior, e. g., threaten privation of active and passive voice by way of precept ? The law is clear and allows extrajudicial procedure in the case of certain penalties, and again in the case of certain offenses. 1 ) As to penalties. Suspension ex informata conscientia, from its very nature is imposed summarily (cfr. p. 664). Penal privation of a removable office may be effected outside of a court trial (c. 192, §3). Dismissal from one’s religion can be decreed outside of a crim­ inal trial, except in the case of religious with perpetual vows in clerical exempt religions. 2) As to offenses. The superior can proceed extrajudicially against these offenses: a) where a cleric is guilty of non-residence, concubinage or neglect of pastoral duties (cfr. p. 660 ff.) ; b) where a cleric renounces the faith, attempts marriage, joins the armed serv­ ice unlawfully, fails to resume the clerical garb, or residence after be­ ing warned by his superior (c. 188) ; c) if a religious renounces the faith, attempts marriage, or deserts with a person of the opposite sex (c. 646) ; d) in all cases of scandal or grave sin even though no penalty was threatened by the law or the superior, although what kind of penalty is allowed is not clear (c. 2222,§1). Chapter IV MATRIMONIAL TRIALS IN PARTICULAR The vast majority of trials in the Church today concern marriage questions. But not ail marriage questions need be settled by way of a trial; in many cases an extrajudicial process suffices. In three articles we shall discuss: 1) the formal marriage trial; 2) the summary marriage trial; 3) extrajudicial marriage processes. ART I The Formal Marriage Trial The formal marriage trial is required to determine the validity of a contested marriage in three cases: 1) in impotcncy cases; 2) in defective consent cases; 3) where an impediment of c. 1990 is not certain. AVith the exception of a few points proper to marriage trials, the procedure required for the ordinary trial as outlined in Chapter I of the present Book must be observed. Until recently the matrimonial diocesan courts often found it confusing when conducting a formal trial to refer to different sections of the Code for the legislation governing its procedure. For it will be noticed that in addition to what we shall say in the present article, and which is taken from Title XX of Book IV of the Code (c. 1960-1989), marriage trials are likewise governed by the general law on trials, as contained in Title I—XVII of Book IV of the Code (c. 1556-1924). To simpli­ fy matters the S. C. of the Sacraments on Aug. 15, 1936 {Acta XXVIII, 313, $q.) issued a lengthy Instruction which restates the canons of the Code on matrimonial procedure in an orderly manner, both the canons which relate to trials in general insofar as they have application to marriage trials, as well as those canons which find particular application to marriage trials. An English translation of the Instruction is found in Bouscaren, Canon Law Digest, vol. II, 202, sq.; while for an exhaustive commentât}' on the Instruction 619 620 MARRIAGE TRIALS the reader is referred to Doheny, Procedure in Marriage Trials (For· mal Cases). In this article we shall confine ourselves to those points which are proper to marriage trials, reminding the reader again that in all other respects the common norms laid down above for trials in general must be observed. We shall consider: 1) the competent forum; 2) the personnel of the matrimonial court; 3) the plaintiffs in marriage trials; 4) the proofs admissible in marriage trials; 5) appeals from the sentences of marriage courts. §1. The Competent Forum Marriage causes of baptized persons belong by exclusive and inherent right to the Church (c. 1960). The reason is that Christ Our Lord raised the natural contract of marriage to the dignity of a Sacrament when entered into between baptized persons. Thus, Christian marriage was raised to the status of a sacred thing over which the Church alone may claim jurisdiction. Hence, the Church, to the exclusion of the State, judges: 1) concerning the validity of the bond of a Christian marriage; 2) concerning the effects which flow immediately therefrom, i. e., the question of legitimacy, and the right to separation from bed and board. But the State exclusively legislates and judges concerning the validity of the marriage of infidels and concerning the purely temporal effects of Christian marriage, e.g., dowry, titles of nobility, the right of succession to an inheritance, etc. (c. 1961). As to the competency of the different ecclesiastical tribunals among themselves, we must distinguish between matrimonial causes reserved to the Holy See, and those not so reserved. To the Roman Pontiff, or the Holy Sec, are reserved: 1 ) The matrimonial causes of supreme Christian civil rulers, those of their children, and of the persons who are to succeed next to the supreme rule ; and these causes are reserved directly to the Roman Pontiff (c. 1962, 1557, §1, n. 1); 2) Judgment concerning ratum et non-consummatum cases is reserved to the S. Congregation of the Sacraments; or if one party is a non-Catholic. to the Holv Office (c. 1962 ; c. 247, §3;S. C. Holy Off. Jan. 27, 1928; Acta XX, 75) ; 3) To the Holy Office are reserved marriage cases when it is alleged that a subsequent marriage was rendered invalid due to the faulty application of the Pauline Privilege; likewise the case con­ templated in the preceding number (c. 1962). All other marriage causes may be judged by the local Ordinary’s MARRIAGE TRIALS 621 court. To determine which local Ordinary has competence with re'spect to other local Ordinaries these rules obtain: 1) By reason of contract the judge of the place where the marriage was contracted is competent (c. 1964) ; 2) By reason of domicile or quasi-domicile the judge of the place where the defendam has a domicile or quasi-domicile is com­ petent (c. 1964). Hence, if the defendant at present lives in a diocese different from that in which he married, the plaintiff has the option of bringing the case to either the judge of the place where the marriage was contracted, or to the judge of the place where the defendant is at present domiciled or quasi-domiciled. But if the defendant has a domicile in one diocese and a quasi-domicile in another, and the plaintiff chooses to sue in the court of the quasidomicile, the judge of the place of quasi-domicile must first inquire concerning the reasons which prompt the plaintiff to bring his case to this court rather than to the court of domicile, or to the court of the diocese where the marriage was contracted. For it often happens that the court of quasi-domicile is preferred by the plaintiff in the hope that the defendant being less known in such place, and having fewer relatives and friends to testify in his behalf, will be less able to defend the validity of his marriage (cfr. Decree of the S. C. Sacr., Dec. 23, 1929; Acta XXII, 168) ; 3) The rule that a marriage case must be brought to the domicile of the defendant suffers no exception even where a wife has been maliciously deserted by her husband, and wishes to contest the validity of her marriage with him. She must bring suit in the place of the husband’s domicile or quasi-domicile. Only after she has obtained a decree of legitimate separation from bed and board from the ecclesiastical authorities may she sue her husband in the place of her own domicile or quasi-domicile (Code Comm. July 14, 1922; Acta XIV, 529); 4) Where one party to the contested marriage is a non­ Catholic, the domicile or quasi-domicile of the Catholic party determines competency even though the Catholic party is the plaintiff (c. 1964). A Catholic wife who has only a separate quasi-domicile of her own, in the supposition that she has not obtained from the Church a decree of legitimate separation from bed and board, may sue her non-Catholic husband in the place of her own quasi-domicile or in the place of the husband's domicile (Code Comm. July 14, 1922; Acta XIXV, 530). 622 MARRIAGE TRIALS §2. Personnel of the Court Marriage trials where the validity of the bond is involved call for a collegiate court of three judges (c. 1576). It is not required that all three judges be present at every session. It suffices if after the conclusio in causa each judge be given a copy of the acts of the trial, of all evidence submitted, of the written defenses of the parties and of the defender of the bond, so that they may draw their own conclusions, set down their opinions in writing, and convene at a special session for the rendering of the sentence. In addition, we have in every marriage trial a notary and a courier. But what is especially to be noted, is that the defender of the bond must be present at, or at least be invited for every session. It is the right and duty of the defender of the bond: 1) To be present at the examination of the parties, witnesses and experts, and to formulate the questions for the court to propose to these individuals; 2) To be informed of all witnesses produced by the plaintiff, of all documents and other proofs, and to challenge the same if the case so warrants; 3) To produce witnesses of his own, documents, and any other kinds of proof in order to weaken the plaintiff’s case; 4) After the probative stage of the trial and the publication of the acts, to prepare a written defense in support of the validity of the marriage (c. 1967-1969). It is obvious that the common weal demands in marriage trials the presence of such an official as the defender of the bond. For it often happens that both parties are desirous of a declaration of nullity, and to that end they may even frame a case beforehand. Since there is no defendant in a case of this kind, and in order to avoid collusion between the parties, the Church requires that the defender of the bond uphold the validity of the marriage, and thus become the defendant ex officio. Even where the one party opposes a declaration of nullity, the defender of the bond must nevertheless participate in the trial, becoming a co-defendant with said party in that event. At times the law requires that the promoter of justice also intervene in marriage trials. This applies when the parties are deprived of the right to petition a declaration of nullity (cfr. infra). Also it applies when two parties arc united in an invalid marriage and are giving public scandal, and neither petitions to have the marriage declared invalid, and special circumstances urge an official MARRIAGE TRIALS 625 declaration. It then becomes the duty of the promoter of justice, as diocesan attorney, to either have the parties seek the validation of their marriage, or if this is not possible, to demand that the court declare the marriage invalid. Throughout the trial the promoter of justice will act as plaintiff, the defender of the bond acting as defendant. §3. Plaintiffs in Marriage Trials Only the parties to a marriage, and the promoter of justice, have the right to petition a declaration of the nullity of their mar­ riage (c. 1971, §1). Other individuals may simply denounce an invalid marriage to the court with the request (not demand) that a declaration of nullity be issued (c. 1971, §2). But the parties to a marriage are debarred from petitioning a declaration of the invalidity of their marriage: 1) In the case of a non-Catholic plaintiff, unless previous permission is obtained from the Holy Office (H.O., Jan. 27, 1928; Aeta XX, 75) e.g., it is his first marriage that obstructs his second contemplated marriage with a Catholic who is otherwise free; 2) Where the spouses were the culpable cause of the nullity of their marriage, c. g., by having placed a condition to their con­ sent contrary to the substance of marriage. Here they may do no more than denounce their marriage to the court with the request that a declaration of nullity be issued (c. 1971, §1 ). It then devolves upon the promoter of justice to present to the court a formal bill of complaint if he thinks this justified because of scandal, the im­ possibility of reconciliation of the parties, now divorced and remar­ ried, and their repentance (Code Comm. July 17, 1933; Acta XXV, 345; Code Comm. Mar. 12, 1929; Acta XXI, 171). It follows that the promoter of justice has the right to attack a marriage either when the parties arc forbidden to petition a declaration of nullity, or refuse to do so. But the impediment which invalidates the marriage must be public by its nature. §4. Proofs in Marriage Trials In addition to the proofs admissible in ordinary trials, there are three other kinds of proofs peculiar to marriage trials, namely: 1) the testimony of near relatives; 2) bodily inspection; 3) the testimony of the seventh hand. Testimony of relatives—Wc have already seen how in the ordinary trial the testimony of near kin is debarred for the reason that love of kin often prevails over love of truth. But in marriage 624 MARRIAGE TRIALS trials near relatives of the parties are permitted to testify in their behalf (c. 1974). The reasons are necessity and expediency. Intimate family affairs, such as matrimonial plans and difficulties, arc usually discussed only with one’s nearest kin. Hence the prevalence of parents, brothers and sisters, aunts and uncles to testify to such matters in a marriage trial as to: when the parties to the contested marriage first met and under what circumstances, whether the days of courtship were spent in apparent happiness or rather in constant quarrels and bickerings, whether the parties showed signs of joy on the wedding day, whether at any time prior to the marriage the party confided to the witness his opinions concerning divorce, attitude toward offspring, etc. Bodily inspection—Where sexual impotency is claimed as the impediment invalidating a marriage, it is necessary that both parties undergo a physical examination by experts (c. 1976). Impotency, which is not to be confused with sterility, the latter being no impediment, is the inability to perform the sexual act necessary for procreation. Usually this is caused by some abnormality in the genital organs. At times it may be due to some psychic cause, e.g., frigidity, revulsion on the part of the woman to the sexual act. Two physicians are to be appointed for the examination of the man, and two midwives for the examination of the woman, unless the latter consents to an examination by male physicians. At the examination of the woman there should always be present an honest matron of good morals (c. 1979). The physicians, midwives and matron are appointed by the court (c. 1979). Each physician (or midwife) must conduct the examination independently of the other, and must submit to the court, independently of the other, his or her written opinion concerning the question of impotency. Later, each appears in court to answer orally the questions prepared by the defender of the bond (c. 19801981). Testimony of the seventh hand—The testimony of the seventh hand {testimonium septimae manus) is simply the testimony of seven witnesses who testify to the trustworthiness of the parties to the trial in impotency cases where impotency cannot be proved by bodily inspection cither because one or both parties refuse to submit to an examination, or because the woman has had children by another man. or because the examination has proved the absence of physical MARRIAGE TRIALS 62S impotency «although there may still be impotency present due to mental causes. These witnesses are called of the seventh hand probably because of the ancient custom of raising the hand in the act of testifying. There must be seven witnesses for one party and seven other witnesses to testify to the trustworthiness of the other party, i. e., 14 witnesses in all. Usually, unless prudence suggests otherwise in some particular case, they are also asked what they know about the circumstances which preceded, accompanied and followed the marriage at issue. Thus, if they can assert that they had heard the parties complain of their childless condition at an unsuspect time, i.e., before the idea of a marriage trial was ever thought of, such testimony adds greater weight than if they simply assert that they believe the parties to be truthful persons, and have a reputation for veracity in general, and can be relied upon in the case under consideration when they state that sexual intercourse between them is impossible. Where one or the other party cannot produce seven persons (preferably relatives or intimate associates) who know him well enough to testify to his trustworthiness, this fact should be recorded in the acts of the trial, and if the judge cannot e.v officio supply for the wanted number, the trial may proceed with fewer witnesses (cfr. c. 1975). §5. The Appeal If the tribunal pronounces a marriage valid, the plaintiff has the right to appeal the case to the court of second instance. If this court of second instance likewise pronounces the marriage valid, no further action is allowed on the part of the plaintiff, but he may ask that the trial be reopened at any future time when he comes into possession of new evidence to support his claims. The reason is that marriage trials, like all trials which concern the legal status of persons, never become irrevocably adjudged. On the other hand, should the court of first instance find the marriage invalid, it is the duty of the defender of the bond to appeal the case to the court of second instance. Should he fail in this his duty, and even though ten days or more have elapsed since the court of first instance passed sentence, the sentence does not become an adjudged matter. It is peculiar about marriage trials that two sentences pronouncing the marriage invalid are needed before the plaintiff can enter upon «a new marriage (c. 1986-1989). 626 SUMMARY TRIALS ART. II Summary Marriage Trials (c. 1990-1992) This is a short form of trial in which documents count for more than witnesses. It can be followed when the marriage bond is attacked as invalid by reason of any of the following impediments: I) disparity of cult; 2) major orders; 3) the solemn vow of chastity; 4) a previous marriage bond; 5) consanguinity; 6) affinity; 7) spiritual relationship. It had been disputed by authors whether the impediment of nonage justified a summary trial, but a recent answer of the Code Comm, said that nonage called for the lengthy solemn, or formal, trial. At the same time the Code Comm, solved another disputed question when it stated that the process spoken of here in c. 19901992 was to he considered a trial, not an extrajudicial process (Acta, 1944, p. 94). It is essential in the summary trial that the plaintiff must offer documents which of themselves prove: I) that one of the above impediments existed to invalidate his marriage; 2) that no dispensa­ tion from the impediment was granted. In disparity of cult cases, however, it seems sufficient to prove the non-baptism of one party through witnesses alone. Negative facts can hardly be proved through documents directly. But in­ directly this is possible, e. g., where the marriage register, as also the chanccrj- files, show no trace of a dispensation having been granted from a marriage impediment. Although the impediment in the last analysis is definitely proved by one authentic document alone, e. g., consanguinity through the baptismal register, yet every summary trial will require that a number of other documents be presented to prove that this one main document really establishes conclusive proof. It must be shown, e.g., that a marriage was actually contracted, that no dis­ pensation was obtained, that these are the two parties mentioned in the marriage certificate, that they are the same persons whose names appear in the baptismal register as descending from the same common stock giving rise to consanguinity, that they have been freed from the civil bond of marriage by a civil divorce decree, that at least one of them really desires a declaration of nullity as shown through the written bill of complaint, that at least one is SUMMARY TRIALS 627 baptized and held to the impediment and the Church is competent to pass judgment, etc. All this collateral or supplementary evidence can be put into written form by means of various official documents and the affi­ davits of the parties to the marriage and of the witnesses, or the court’s policy may be to call the parties and witnesses to the place of court and interview them personally, the notary recording their testimony. Nothing in the law, or in the nature of the summary trial, seems to necessitate the personal appearance of the parties and witnesses in court. The summary and the formal marriage trial have these things in common: 1) the Official, not the chancellor or the vicar-general handles them; 2) he must be competent in respect to other diocesan courts; 3) the parties must be cited, although what this imports is not clear; it may mean that it suffices to give the defendant a hear­ ing anywhere; 4) the defender of the bond must intervene at least to the extent of reading through the evidence consigned to him by the Official, and objecting to the nature of the same, or to its sufficiency, if he wishes (S. C. Sacr. Provida, art. 226-228). The summary trial differs from the formal trial chiefly in these points: 1) there is no joining of issues; 2) lawyers and pro­ curators arc unnecessary; 3) there is no conclusio in causa; 4) there arc no written defenses; 5) there is no need of a two-fold sentence declaring the marriage invalid. One declaration suffices unless the defender of the bond appeals against the first sentence to the court of second instance. This court in turn will review the case sum­ marily, and either confirm the first sentence, or remand the whole case to the court of first instance to be tried by way of a formal trial. For documents and forms generally required and employed in summary trials, cfr. our “Pastor and Marriage Cases." ART. Ill Extrajudicial Marriage Processes These may be reduced to two categories: 1) the administrative processes; 2) the informative processes. §1. Administrative Processes Clandestinity or defective form cases—A marriage which a Catholic contracts outside of the Church, either before a non­ 628 EXTRAJUDICIAL MARRIAGE PROCEDURE Catholic minister or a civil official, can be declared invalid by the local Ordinary, or by the pastor if authorized by him. The chancellor usuallj· gathers the necessary papers, or authorizes the pastor or his assistant to do so, before submitting the evidence for the bishop’s declaration of invalidity. These various documents must show : 1 ) that a marriage was contracted not in canonical form ; 2) that one party at least was held to the Catholic form as shown through the baptismal, first communion or confirmation certificates; 3) that the marriage was never validated later in due canonical form; 4) that a civil decree of divorce has been obtained. Presumed death cases—If one spouse has disappeared, and has not been heard from over a period of years, but there is no con­ clusive proof of his death, church law, unlike civil law, does not permit remarriage automatically after a lapse of a certain number of years. It is necessary that the bishop, after examining the proofs of death ottered by the surviving spouse, arrive at moral certainty that the other has really died. Once he has satisfied himself on this point, the bishop alone issues the declaration of freedom without the need of any trial, or the intervention of the defender of the bond. Pauline Privilege cases—A marriage contracted by two unbap­ tized persons may be dissolved in virtue of the Pauline Privilege if: 1) the petitioner is a convert to the faith; 2) the other spouse re­ mains unbaptized; 3) the unbaptized consort refuses to be baptized, or at least to live peacefully with the convert. Once these facts are established the bishop may declare the convert free to contract a new marriage with a Catholic. For documents and forms in al! the above cases, cfr. our Pastor and Marriage Cases. §2. Informative Processes These are conducted with a view to advising the Holy See whether a dissolution of a valid marriage may be granted: 1) in socalled ratum et non-consummatum cases; 2) in a consummated marriage between a baptized non-Catholic and a non-baptized person, one of whom is converted to the faith, but because of the presence of baptism in the case of one of the spouses, the Pauline Privilege cannot be invoked {in favorem fidei cases). Ratum et non-consummatum cases—Canon 1119 claims for the Church the right to dissolve the bonds of a valid marriage between Christians (baptized persons), or between a baptized and an unbap­ tized person, provided the marriage was not consummated by nat­ ural intercourse. While such a right as this cannot be read explicitly into any text of Sacred Scripture, yet its existence is proved alone EXTRAJUDICIAL MARRIAGE PROCEDURE 629 by the long-standing practice of the Church. From the 11th century on the Roman Pontiffs have dispensed from the bonds of such unions on the theory that they arc not perfect symbols of the union of Christ and His Church, and so arc not perfect marriages. In dissolving the bonds of such marriages the Pope proceeds as the infallible interpreter of Holy Writ, i. e., he interprets the words of Christ: IFhat God hath joined together, let no man put asunder, as applying solely to a consummated marriage between two baptized persons. Although the procedure followed in ratum et non-consummatum cases is rather lengthy and involved, yet it cannot be strictly called a marriage trial for the simple reason that certain formalities of a trial arc wanting, e. g., no sentence is issued by the Ordinary, or the S. Congregation, but if the divorce is granted, it may be called a favor or dispensation at the most; nor is there a joining of issues, or a court of three judges, or a written defense by the parties, etc. But in most respects the process follows the general outlines of a formal trial, so much so that the S. C. of the Sacraments on May 7, 1923, issued a lengthy Instruction concerning the procedure to be followed {Aeta XV, 389, sq.), an English translation of which is found in Bouscarcn, Canon Law Digest, I, 764, sq. The party (or parties) who desires the dissolution of his non­ consummated marriage presents a written petition to the bishop, although it should be worded as addressed to the Sovereign Pontiff. In this petition the facts are stated in rough outline upon which the non-consummation is claimed, and the reasons which will justify the Pope in granting a dissolution, for the Pope in this case needs a just reason since he is dispensing from the divine law by vicarious power. The petition is transmitted to Rome (the S.C. of the Sacra­ ments, or the Holy Office if one party to the marriage is a non­ Catholic). If the Congregation admits the petition, it delegates the bishop to construct the informative process either personally or through a subdelegatcd priest of his choice. The process must prove: 1) the non-consummation of the marriage; 2) the existence of reasons justifying a dispensation. As in the ordinary marriage trial, the parties are cited and questioned, and the wife must submit to a bodily inspection by competent physicians or midwives. If this inspection cannot be conducted, or would prove idle because, e.g., the woman is a widowed mother, each party must furnish seven witnesses to testify to his veracity, the same as in impotency cases (c. 1975, 1976). The defender of the bond participates in the process throughout, prepares questionnaires, challenges the proofs 630 EXTRAJUDICIAL MARRIAGE PROCEDURE adduced by the parties, and prepares a written opinion of the case at the end of the proceedings. The acts arc sent to the Con­ gregation, no sentence being passed by the bishop or the sub­ delegated judge, for their duty is merely to inform the Congregation of the facts arrived at by means of the informative process. The acts at Rome are studied by certain consultors, and if they report favorably, it remains for the Cardinal Prefect of the Congregation to refer the petition to the R. Pontiff, asking that a dispensation be granted from the bonds of the non-consummated marriage. For forms and questionnaires consult our Pastor and Marriage Cases. hi favorem fidei cases—When a dissolution is desired from the bonds of a valid marriage contracted between a baptized and an unbaptized person, because the parties are divorced, and one is now a Catholic convert, or prospective convert desiring marriage with a Catholic, in such case the convert may petition of the Pope a dissolution from the bonds of his (her) first marriage. Here the Pope will again act by vicarious authority as the representative of Christ Himself {Quodcumque solveris, etc.). 'I'he Ordinary simply informs the Holy Office of the facts in the case, sends the proofs of non-baptism of one spouse to the first marriage, states the reason which might justify a dispensation or dissolution, e.g., the youthful age of the convert, etc. The defender of the bond must take part in this process. The Holy Office issued instructions some years ago how the bishops are to handle these cases. For more information as regards documents, method of procedure, etc., cfr. our Pastor and Marriage Cases. Chapter V ORDINATION TRIALS IN PARTICULAR Ordination trials are those conducted to ascertain either the validity of major orders in some particular case, or the presence of the obligations attaching to valid major ordination. The petition for a trial is sent to the S.C. of the Sacraments if the question at issue is the presence of the obligations attaching to major orders, or if it is the validity of the ordination which is contested for any reason other than a substantial defect in the rite of ordination; in the latter case the petition is sent to the Holy Office (c. 1993). Where the petition has been sent to the S.C. of the Sacraments, this Congregation authorizes the Ordinary of the diocese to which the cleric belonged at the time of his ordination to conduct the trial. If the petition was sent to the Holy Office, the cause is remanded for examination to the Ordinary of the diocese in which the ordination took place (c. 1993). The local Ordinary’s tribunal will conduct a formal trial from which the defender of the bond will appeal to the court of second instance should the court pronounce in favor of the in­ validity of orders, or in favor of the absence of the obligations at­ taching to the orders. Or the tribunal will conduct merely an informative process, at which the defender of the bond must again be present throughout, and the acts are then sent to the competent Congregation for a decision. A lengthy procedure for these cases is found in Acta XXIII, 457, $q. and in Bouscaren, o.c., I, 812, sq. The question whether a formal trial, or only an informative process, may be conducted by the local Ordinary depends upon the tenor of the rescript of the Holy See (c. 1993). It may be noted that no trial is required when a cleric contests the validity of minor orders. Should he desire while under minor orders to discontinue further study for the priesthood, it suffices for the local Ordinary to issue a decree reducing him to the lay state. The reason for the simple procedure is that there are no grave obligations such as celibacy attaching to minor orders. 631 LUO THE BEATIFICATION AND CANONIZATION OF THE SERVANTS OF GOD Chapter I PRELIMINARY NOTIONS Cultus latriae and cultus duliae—The cult which we pay the saints is that of veneration and invocation. In venerating the saints we acknowledge their superior excellence in the spiritual order with respect to ourselves, but not with respect to God. When invoking the saints wc petition their assistance, intending that the good gifts we may receive through them come always from God, the original source of every blessing, the saints merely interceding for us. This is not idolatry as some few Protestants still insist. The cultus of the saints, as just explained, does not involve a worshipping of creatures. God alone is worshipped insofar as He alone is honored in His infinite perfections, these being considered intrinsic to His nature. He alone remains the supreme Lord of creation and the source of all gifts. 632 BEATIFICATION AND CANONIZATION 633 In the liturgical and canonical language of the Church the cult paid to God is called cultus latriae, while that given to the saints is called cultus duliae. In the English language those terms would correspond to worship and adoration in the first case, and to veneration and invocation in the second case. Whether in any given case the cultus latriae or the cultus duliae is being shown can be judged not so much from external ceremonies such as the burning of incense, genuflections, etc., but rather from the intention of the individual who offers the cult. Justification for the cult of the saints is found in natural reason, in Sacred Scripture and in ecclesiastical tradition, \atural reason prompts men to show special marks of honor and veneration to those who have distinguished themselves in the temporal order, e.g., in the arts, sciences, social service, etc. No less should honor be paid to those heroes of the supernatural order, the saints, who in this world distinguished themselves by the practice of virtue to an exceptional degree. As to invoking the saints who are now in heaven as the special friends of God, this is as reasonable as to rely upon a trusted official in the State to use his influence with the king or president to obtain for us some special favor in the temporal order. So, too, does 5. Scripture sanction the veneration and invocation of the saints. Veneration was paid to the angels or messengers of God in the Old Testament, and to the prophets (cfr. Num. XXII, 31 ; Jos. V, 15). As for the invocation of the Saints, if the Apostles besought the prayers of the faithful, with much more reason may we ask the prayers of those whose sanctity and friendship with God is now placed beyond all doubt (cfr. Rom. XV, 30‘; Thess. V, 25). Finally, ecclesiastical tradition shows that the cult of the saints was not a later innovation as some Protestants maintain, but can be traced to the primitive Church. From the earliest times feasts in honor of the martyrs were observed, sacrifices were offered in their honor, altars and churches were dedicated to their memory. History and nature of beatification and canonization—In the early Church, martyrs were the first to whom religious honors were accorded. They alone were listed in the canon of the Mass. About the fourth century religious honors began to be paid also to con­ fessors, i.e., to those Christians who suffered torture or imprison­ ment for the faith though death did not result. In course of time the word confessor was broadened to include all non-martyrs who by the practise of Christian virtue in a heroic degree led a life of continual equivalent martyrdom. 634 BEATIFICATION AND CANONIZATION In the early Church, also, the question whether public cult could be paid to a deceased person was then, as now, reserved to the ecclesiastical authorities. But in those times the Christian communities were small, and the danger of error and abuse in according religious honors to one who had led a life of piety, or had died for the faith, was correspondingly slight. Hence, the local bishop was considered competent to permit such public cult, nor was the lengthy process of inquiry, as at the present day, fol­ lowed. The cultus permitted by the bishop was optional, not man­ datory. It was confined to his diocese. If the cultus spread to several dioceses in course of time with the sanction of the bishops of those dioceses, it was possible in this way for the universal Church to consent to the cultus so that the servant of God might be considered virtually canonized. Between the 10th and 12th centuries we find Rome taking a hand in these matters. Abuses were bound to creep in. In some cases it was discovered that a supposed martyr had suffered death from political rather than from religious motives. In other cases popular enthusiasm saw miracles in events which later, upon closer investigation, proved to be but natural phenomena. .Alexander III (1159-81) prohibited the veneration of a man who was found to have died in the state of intoxication but whom the faithful honored as a saint because of supposed miracles in the case. The Pope added words to the effect that neither the man in question nor any other person could be venerated without authority of the Roman Church. But since the language he employed left the matter doubtful, bishops continued to proceed with beatifications until the time of Urban VIII. This latter Pope in two constitutions issued in 1625 and 1634 stated quite clearly that henceforth all cases of beatification and canonization were to be reserved to the Roman Pontiff. Prior to the Urban constitutions there had been no distinction between the terms venerable, blessed and saint, the words being used interchangeably to mean an exceptionally holy person. But the Urban constitutions now required a two-fold process for in­ quiring into the virtues, martyrdom and miracles of a servant of God. Upon the completion of the first process and its ratification by the Pope, the servant of God could be called blessed, and the act declaring him blessed was called beatification, i.e., the individual was declared beatus. Upon completion and ratification of the second inquiry the blessed was declared a saint', and the act declaring him such was called canonization, a word probably derived from the practise of the early Church in placing the names of the martyrs BEATIFICATION AND CANONIZATION 63S in the canon of the Mass. The term venerable, at least under the Code, may be used as soon as the Pontiff has declared that the servant of God practised the required virtues in a heroic degree. This is not yet beatification, which entitles one to be called blessed, and permits religious honors. Since the time of Urban VIII beatification is an act which permits religious honors to be paid to a servant of God, the permis­ sion being restricted to a certain locality or to some religious organi­ zation. Canonization, on the other hand, carries with it a command of the Sovereign Pontiff that the person be venerated in the uni­ versal Church. In the one case we have a restricted permission, in the other case a general command. In declaring a person blessed the Pope is liable to error. But it is the common teaching of theologians (not a de fide proposition) that the Pope is infallible in his decrees of canonization. The sub­ stance of the infallible judgment is that the person canonized is now in heaven, and that his life is worthy of imitation. It is argued that on such momentous questions the faithful could be led astray to the great detriment of their souls if God did not preserve from error the chief shepherd of souls. It follows that since canonization implies infallibility, the cultus permitted to the servants of God by individual bishops in pre-Urban days supposed beatification not canonization, since an individual bishop other than the Pope does not enjoy infallibility. With slight modifications the legislation of the Code on beatifi­ cation and canonization is substantially the law as contained in the constitutions of Urban VIII issued in 1625 and 1634. Sixtus V, who organized the Roman Curia, reserved questions of beatifica­ tion and canonization to the S.C. of Rites, and this is the present rule (c. 1999). But the local Ordinary is still competent to initiate in his own name inquiries concerning the virtues, martyrdom and miracles of a servant of God with the ultimate view to his beatifica­ tion by the Roman Pontiff (c. 1999). Exceptional procedure—It will be remembered that because Alexander III (1159-81) was somewhat ambiguous in his decretal restricting the authority of bishops to permit public cult to be paid to the servants of God, manv bishops continued as formerly in this matter. On the other hand, as the later Urban constitutions left no doubt that in future only the Pope could allow such public cult, doubts arose concerning the status of those persons who after the pontificate of Alexander III began to be accorded religious honors by permission of the bishop. In answer Urban VIII com­ promised by declaring on the one hand that such persons were 636 BEATIFICATION AND CANONIZATION not be considered beatified, but on the other hand dispensing from the lengthy new procedure for beatification under certain conditions. Namely, if it could be proved that the servant of God had been in possession of public cult for at least 100 years prior to the first Urban constitution (1625), this sufficed to establish the fact of such immemorial cult, nor was it necessary to investigate con­ cerning the fact of martyrdom, of virtues, or miracles. Thereupon the Pope would confirm the cult and confer equiva­ lent beatification. This procedure is called the processus per viarn cultus, or the processus casus excepti (c. 2000). This exception is retained in the Code under can. 2125-2135, but with certain im­ portant modifications introduced by the S.C. of Rites Nov. 11, 1912 (Jeta IV, 705). Now it no longer suffices to prove the fact of immemorial cult, but it must be proved in addition that the servant of God, living before the 16th century, suffered martyrdom, or practised the required virtues in a heroic degree. There is, how­ ever, no need to prove miracles save for the canonization of these persons. '1'he fact of cultus in the excepted cases can be proved by any of the following signs: 1) if the body of the servant of God had been removed from the grave and had been placed under an altar for veneration; 2) if his name had been invoked in public prayers; 3) if his image had been depicted in painting or sculpture with a halo or rays surrounding the head; 4) if anniversaries had been celebrated in his honor; 5) if churches and oratories had been dedicated to his memory; 6) if he had been regarded as the patron of a certain locality; 7) if votive tablets had been attached to his grave, candles lighted, or incense offered there; 8) if there had existed a peculiar office or Mass in his honor; 9) if the title of Blessed had been given to him on monuments, statues, or in public documents. It must be evident that few causes proceed by way of cult, or the exceptional process today. The process is not required in the case of those who had been accorded religious honors prior to the pontificate of Alex. Ill, when the local bishop’s right to permit public cult to the servants of God had not yet been re­ stricted. The process is not applicable to those who have died since 1525, i.e., within 100 years prior to the first constitution of Urban VIII. It can be followed only in the case of those who died between 1170 and 1525, and who had been in possession of public cult for at least 100 years prior to 1625. It must be proved, moreover, that the cult has continued down to the time the judge pronounces sentence in the process. Among those who have been BEATIFICATION AND CANONIZATION 637 equivalcntly beatified and canonized by the exceptional process xve may mention St. Romuald, Norbert, Bruno, Peter Nolasco, Queen Margaret of Scotland, and Gregory VII. During the remainder of this discourse, therefore, we shall confine our attention to the ordinary procedure of beatification and canonization since the vast majority of the servants of God are now beatified and canonized in this way, namely, by way of non-cult {per viam non-cult us). We shall treat our subject in two chapters, in the first chapter dealing with beatification, and in the second with canonization. It should be pointed out at this time that no one is canonized until he is first beatified. The entire subject is contained in Part II of Book IV of the Code (c. 1999-2141). Chapter II THE PROCEDURE OF BEATIFICATION Here we shall distinguish the causes of confessors from those of martyrs, understanding by the word confessor a person of either sex who professed a holy life without suffering death for the faith. ART. I Causes of Confessors In beatification causes, whether of confessors or martyrs, two kinds of processes must always be conducted : the episcopal processes and the Apostolic processes, the former always preceding. The episcopal processes differ from the Apostolic processes in that in the former the local Ordinary, i.e., the Ordinary in whose territory the person died or where miracles occur (c. 2039), acts on his own authority without previous permission from Rome, whereas in the Apostolic processes he acts as delegate of the Holy See. The episcopal processes are in the nature of a grand jury. They aim chiefly at informing the Holy See in general concerning the reputa­ tion for sanctity of the Servant of God, of his martyrdom, and concerning the reputed miracles. If the Roman Pontiff decides that sufficient evidence is at hand to make out a case for beatification, he authorizes the Apostolic processes to be constructed, and here the investigation is more exacting, for it must be shown at this stage that the servant of God in addition to enjoying a reputation for sanctity practised certain required virtues in a heroic, i.e., excep­ tional, degree. Moreover, the miracles are looked into more thor­ oughly. We shall briefly describe first the episcopal processes and then the Apostolic processes. §1. The Episcopal Processes These arc three in point of purpose, though they may proceed simultaneously, so as to appear as only one process numerically. 638 BEATIFICATION AND CANONIZATION 639 The purpose of the one process is to inquire into the writings of the servant of God; that of the other is to gather information concerning his reputation for sanctity and miraculous works; that of the third is to establish the fact that the constitutions of Urban VIII have been observed, i.e., that no public cult has been paid to the servant of God (c. 2038, §2). After a person’s death his reputation for sanctity may arise in different ways. In the case of St. Theresa of Lisieux, her reputa­ tion for sanctity followed close upon the publication of her auto­ biography. This work inspired numberless persons to pray to her. Favors were obtained through her intercession, and these were so numerous and miraculous in character, as could be ascertained from the many letters sent to the Mother Superior of the Carmel at Lisieux, that the Bishop of Lisieux (Baveux) began proceedings only 13 years after the death of the saint. The first thing the bishop does is to constitute a tribunal. He may act as sole judge, but should he prefer to delegate others, these must be three in number and must sit as a collegiate tribunal (c. 2040). There arc required besides a notary (c. 2013), a postu­ lator and a promoter of the faith. The postulator is he who peti­ tions the bishop to start proceedings, and if the bishop began pro­ ceedings without being requested, as he may do, he must appoint a priest thereafter to act in the capacity of postulator. Clerical religions usually have their regularly elected postulator for pro­ moting the causes of their own members (c. 2004-2008: 20102012). It is the right and duty of the postulator to urge action through­ out favorable to the cause, to produce witnesses and documents, to see that the cause is financed, to obtain lawyers, to submit points on which the witnesses should be questioned, etc. (c. 2007). It is the right and dut}· of the promoter of the faith to weaken the cause at every stage as far as possible by challenging the admissibility of this or that document, by exposing flaws in the evidence submitted by the postulator, by producing witnesses and documents of his own, etc. (c. 2012). This unpleasant duty has merited for him the jocose title of advocatus diaboli. All the above officials must be priests; whether diocesan or extradiocesan, secular or religious, does not matter. But a religious, because of the danger of undue zeal, cannot be notary in causes of his own religion (c. 2014) ; rather a diocesan priest is generally appointed notary. The postulator and the promoter of the faith can be non-Roman priests in the episcopal processes (Code Comm., Jan. 16, 1936; /icta XXVIII, 178); cfr. also c. 2011. But when 6+0 BEATIFICATION AND CANONIZATION the Apostolic processes begin, the postulator and the promoter of the faith must be priests with residence at Rome, and the latter must be an official of the S.C. of Rites (c. 2004, 2010). Process concerning the writings—This is the first of the three episcopal processes. It has for its object the gathering of the writ­ ings of the servant of God, and the ascertaining of their integrity and authenticity. For before the Holy See advances to the beatifica­ tion of a servant of God there must be certainty that nothing con­ trary to faith or morals is contained in his writings. Under this head come sermons, letters, diaries, autobiographies, and any other writings, whether published or only in manuscript form, whether written in the person’s own hand or at his dictation (c. 2042). To obtain the writings in question the bishop issues a decree to be read in every parish of the diocese, and if the case is such, in every house of the religion to which the servant of God belonged. If there is good reason to believe that his writings may be found in another diocese, the assistance of the bishop of that diocese is requested by means of rogatory letters (c. 2043, 2044). All the faithful who are in possession of any of the writings of the servant of God have a grave obligation in conscience to submit them to the episcopal court (c. 2023-2025). If it is desired to retain the writings, the possessor must nevertheless permit the court’s notary to make an authentic copy of them (c. 2045). The process under consideration is concerned not merely with gathering the writings of the servant of God but also with ascer­ taining their integrity, authenticity, and how the individual came into possession of them. All this business requires several sessions of the tribunal. Oaths must be administered, witnesses questioned, and often handwriting experts called in. From this point of view the process is called the processiunculus diligentiarum. Since it is not for the episcopal court, but rather for Rome, to examine the orthodoxy of the writings, when it is decided that all the writings have been gathered, these together with the acts of the process {processiunculus diligentiarum) are carried at once to Rome by a bearer chosen by the episcopal court. This applies even though the other two processes, of which we shall speak, have not vet begun, or if begun, have not yet been completed (c. 2061).' The informative process—This and the following process may be constructed by the same court which supervised the gathering of the documents. The aim of the present process is to gather infor­ BEATIFICATION AND CANONIZATION 641 mation concerning the general reputation for sanctity of the servant of God, and concerning the reputed miracles (c. 2038, §2, n. 2). The law requires that at least ten witnesses testify in this process, two of whom must be presented by the court or the promoter of the faith, the rest may be called by the postulator (c. 2020, §2). In practise many more witnesses arc called in, which requires a great number of sessions and much time. Generally, anyone may testify, including relatives of the de­ ceased, domestics, even heretics and infidels. But the servant of God's confessors arc excluded, as also the judges, postulator, and lawyers (c. 2027). The questions are proposed to the witnesses directly by the court. The court receives the questions from the promoter of faith, who has drafted his questionnaires in harmony with the points submitted by the postulator of the cause. A typical list of such questions is found in Macken, The Canonisation of Saints, Ben­ zinger Bros., 1909, p. 84-87; also in Codex pro postulatoribus causarum beatificationis et canonizationis bv Lauri-Fornari, Rome 1923, n. 51-53. It is obligatory to call in as witnesses those who lived, or had been associated, with the servant of God, e.g., his confreres in religion, his brother-priests, etc. Likewise anyone who has some knowledge of the servant of God which might affect his cause adversely is bound to reveal such knowledge to the court (c. 20232024). All witnesses must explain the source of their knowledge, other­ wise their testimony is valueless. It is immaterial whether they arc eye witnesses or hearsay witnesses (c. 2029). If the servant of God was a religious, at least half the wit­ nesses must be non-members of his religion (c. 2030). All documents which may bear upon the question of the servant of God's sanctity, or of his miracles, must be submitted in this process. We do not refer to his writings at this time (c. 2032-2036). When all witnesses have been heard and all documents sub­ mitted, the acts arc published and two copies thereof are made by hand, one copy to be preserved in the diocesan archives, together with the original, the other to he taken to Rome by a special bearer appointed by the court. Both copies are bound and scaled by a special seal, the description of which must be set down in writing, one copy of the description to be kept in the diocesan archives, the other to be carried to Rome together with the acts of the informative process (c. 2052-2056; c. 2063, §3). Process concerning non-cult—We are treating of the ordinary 642 BEATIFICATION AND CANONIZATION procedure of beatification, a procedure which supposes the absence of cult given to one who died after the year 1525. In any particular case where public cult has been shown to a servant of God against the prescriptions of Urban VIII, i.e., to anyone who died after the year 1525, his cause will not be permitted to proceed until all signs of public veneration have been removed in the judgment of the Holy See. This is partly to punish violations of the Urban constitution, partly to secure an impartial judgment of the case, a judgment which should not be influenced by the pressure of public opinion. Accordingly, the grave of the deceased is visited, and the room where he lived or died, and any other place where one could suspect that signs of devotion might have been paid to the departed servant of God (c. 2058). What these signs of public cult reserved to the beatified arc, we have considered elsewhere. Four witnesses must be questioned on this point, two of whom must be cited ex officio, (c. 2020, §1; c. 2057). There is no need of exhuming the body at this time. When the investigation is concluded, the episcopal court gives sentence concerning the presence or absence of public cult. It then sends the acts of this process together with its sentence to Rome. If it is discovered that public veneration has been paid (a rare con­ tingency at the present day), Rome will give orders that the abuse be ended, and will suspend further procedure until this order is complied with (c. 2060; c. 2085). §2. The Apostolic Processes The Apostolic processes, as distinguished from the episcopal processes, are those which are conducted by authority of the Holy See, partly outside of Rome, but mostly at Rome itself, by the S. C. of Rites. As soon as the writings of the servant of God have arrived in Rome the postulator begs of the Roman Pontiff that these be examined. The Pontiff, thereupon appoints one of the cardinals of the S. C. of Rites to act as cardinal relator in the cause, with the duty of supervising the entire Apostolic process and acting as pres­ ident of the board at the discussions to follow. This cardinal in turn chooses certain theologians to review or examine the writings from the viewpoint of their orthodoxy. From here on the General Pro­ moter of the Faith who is an official of the S. C. Rites takes a hand in the case. He is assisted by a Roman sub-promoter of the faith with respect to work which must be done at Rome (c. 2009-2012). At this time it is the duty of the general promoter of the faith, BEATIFICATION AND CANONIZATION 643 or his assistant, to examine the objections raised by the readers (revisers), to add difficulties of his own, and to turn a copy of these over to the postulator who is assisted in answering the difficul­ ties by one or more theological lawyers. The difficulties against the writings of the servant of God, together with the defense of the lawyers, are put into printed form, and copies thereof are distributed to the cardinals and consultors of the S. C. of Rites. On the appointed day, after having studied the matter thoroughly beforehand, they come together and vote on the writings. If the vote is favorable, a decree is issued to that effect, and the Holy Father is asked for a rescript permitting the cause to proceed to the next stage (c. 20651072). The next stage is the examination of the informative episcopal process (c. 2073-2084). The acts of the case arc again copied at Rome, an accurate translation of them is made, as also a summary. This is put into printed form, copies thereof are given to the pro­ moter of the faith, and the postulator, and the lawyers. The promoter of the faith raises objections, if warranted, against the validity of the episcopal process, and against the sufficiency of the proof to establish a general reputation for sanctity and for real miracles. These objections are answered by the lawyers. The objections, answers and a summary of the life of the servant of God are printed and distributed to the cardinals. After studying the matter care­ fully, the cardinals meet and vote on the question: whether the commission should be signed for the introduction of the cause. If their vote is favorable, the Pope is asked for his placet, and this being secured, the cause passes entirely out of the hands of the local Ordinary, and henceforth, he cannot act save as delegate of the Holy See (c. 2073-2084). It should be remarked at this time that before anything at all is done about the cause at Rome, persons eminent in dignity or authority, c. g., civil rulers, cardinals, bishops, generals of religious orders, etc., are approached by the postulator with the object of having them petition the Holy Father to take up the cause (c. 2077). The next step is for the cardinals to meet and vote upon the question of non-cult. The acts of the episcopal process which had to do with this matter arc examined by the promoter of faith who raises objections and difficulties, and these are answered as usual by the lawyers. These difficulties and answers together with a sum­ mary of the acts of the episcopal process super non-cultu form the material of the cardinals' discussion and vote. If the vote is favor­ able and the cardinals agree as to the absence of public cult in the case, a decree is issued to the effect that the cause may proceed 644 BEATIFICATION AND CANONIZATION further. Thereupon begin the Apostolic processes (c. 2085-2086). For the sake of clarity we shall distinguish between the Apostolic processes conducted outside of Rome, i. e., in the diocese where the episcopal processes had been constructed, and the Apostolic processes conducted at Rome. Apostolic processes outside of Rome—The purpose of the Apostolic processes outside of Rome is to establish the heroic sanctity of the servant of God, and the fact that miracles have been performed. These points may have been covered in the episcopal processes, but now the investigation is more thorough and it is supervised at every stage by the Holy Sec. The first thing to be done is for the postulator at Rome to petition the Roman Pontiff for rogatory letters that judges may be delegated. Five such letters are granted, and the postulator directs one to the bishop, and the rest to those whom the bishop selects to act as the other four judges in the Apostolic trial. The postulator, since he must live at Rome, appoints a vice-postulator to represent him in the diocese. The general promoter of faith at Rome appoints one or more priests to represent him in the diocese as sub-promoters of the faith (c. 2087-2097). Again witnesses arc called, some by the postulator, others ex officio, the rules governing their admissibility or compulsory appear­ ance being the same as those which hold in the episcopal processes. Documents likewise arc submitted. The questionnaires now formu­ lated bjr the Roman promoter of the faith are more exhaustive than those employed at the episcopal processes. They inquire first into the continuation of the reputation for sanctity. But if this inquiry is dispensed with by authority of the Roman Pontiff, especial­ ly in view of the recency of the episcopal processes, the question­ naires will be restricted with a view to ascertaining whether the servant of God practiced the theological virtues of faith, hope and charity in a heroic degree, and whether the same can he said of the cardinal virtues of prudence, justice, temperance and fortitude. At the sessions which inquire into the miracles there must always be present a physician who from his experience with medical science can propose questions, the answers to which will aid in distinguishing natural from miraculous phenomena (c. 2087-2097). A typical list of questions to ascertain the heroic sanctity of the servant of God is found in Macken, o.c. p. 142-154. Although the sessions covered by the Apostolic trial outside of Rome will be very numerous, yet the trial should not extend beyond two years, otherwise a papal dispensation will be required to pro­ long the investigation further (c. 1095). BEATIFICATION AND CANONIZATION 645 Before the Apostolic trial outside of Rome is brought to a close, the remains of the servant of God must be exhumed and the body identified. The results of this procedure must be incorporated in the acts of the trial (c. 2096). Upon the conclusion of the process two copies of the acts arc made by hand. Both are bound and scaled, one being kept in the episcopal archives together with the original acts, the other being taken to Rome by an official bearer (c. 2097). The Apostolic process at Rome—This consists of three discus­ sions: 1) concerning the validity of the Apostolic trial conducted outside of Rome; 2) concerning the presence of heroic sanctity; 3) concerning the presence of miracles. It must be observed that the Apostolic trial outside of Rome dealt chiefly with fact finding. It now devolves upon the S. C. of Rites to appraise and interpret these facts, and to draw appropriate conclusions. 'Fhe first discussion concerns the validity of the Apostolic process outside of Rome. Here the acts are examined by the promoter of the faith, his objections are conveyed to the lawyers for the cause who answer the difficulties, and all this matter is printed and sub­ mitted to the authorized cardinals and officials of the S. C. of Rites for their deliberation. On an appointed day the above cardinals and officials meet and vote on the question whether the .Apostolic trial can be considered valid. If their vote is favorable, the Pontiff is requested to confirm the vote and to authorize the decree permit­ ting further steps to he taken (c. 2098-2100). The second discussion has for its object the practise of the required virtues in a heroic degree. In general wc may say that heroic virtue is the habit of performing good acts to a very remark­ able or exceptional degree. In particular, the standard of excellence demanded may be gathered from the questions which are proposed at the Apostolic triai, a typical list of which may be found in the sources already referred to. It should be noted that the discussion concerning the virtues may not be begun until 50 years after the death of the servant of God, unless a papal dispensation is granted. The material for the discussion in the first meeting is a summary of the acts of the Apostolic trial, a summary of the life of the servant of God, the difficulties of the promoter of the faith and the answers of the lawyers. This is all put into printed form. The material for the discussion in the second meeting is mostly composed of the difficulties raised by the cardinals and consultors at the preceding meeting. For it must be noted that three meetings are called to discuss the heroicity of the virtues, namely, the antepreparatory meeting, the preparatory meeting and the general 646 BEATIFICATION AND CANONIZATION meeting. At these meetings are present the cardinals of the S. C. of Rites and the consultors. The third meeting is held in the presence of the Pope. If the vote is favorable, the Pontiff reserves his decision until a later day to give himself to prayer and reflection. If he confirms the vote, he orders that a decree be issued in which it is stated that the servant of God possessed the required virtues in a heroic degree. From this moment the servant of God can be called venerable, though he is not yet beatified (c. 2101-2115). The third and last discussion decides the question of miracles. The acts of the Apostolic process from this viewpoint are studied not only by the promoter of the faith but also by two competent physicians. Their difficulties are answered by the lawyers for the cause. In the usual three meetings, namely, the antepreparatory, the preparatory and the general meeting, the cardinals and consultors, having studied the miracles beforehand, and the difficulties of the physicians and the promoter of the faith, and having weighed the defense of the lawyers, convene and vote on the questions: 1) whether a person has been really cured; 2) whether the cure was miraculous. The last meeting is held in the presence of the Pontiff, and if the vote of the consultors and cardinals is favorable, the Pontiff, after some days’ delay, makes known his decision. If this is favorable and he approves of the miracles, a decree to this effect is drawn up. At a later date the cardinals and consultors convene to vote on the question: whether the beatification can be proceeded with in safety. This being given a favorable vote, and later confirmed by the Pope, a decree super tuto is issued, and the date is set by the Pope for the solemn beatification in S. Peter’s Basilica (c. 2116-2124). ART. II Causes of Martyrs Thus far we have considered the process of the beatification of confessors. With few variations the beatification of martyrs proceeds along the same lines. The episcopal processes come first, as in the causes of confessors, and they deal with the writings of the martvr and the fact of mar­ tyrdom (c. 2048, 2038). But no inquiry is made into the general reputation for sanctity. If miracles arc alleged, these arc looked into, but miracles are not strictly required. Signs suffice, and if not even these are present, the Pope may be asked to dispense from their BEATIFICATION AND CANONIZATION 647 requirement (c. 2116, §2) . By signs as distinct from miracles, we understand unusual events not measuring up to the standards of a miracle, e. g., a brilliant light surrounding the body of the martyr, a supernatural odor proceeding from the wounds, etc. The results of the episcopal processes, including the process de non-cultu (c. 2038), arc copied in the usual way, bound and sealed, and one copy is carried to Rome by an officially appointed bearer. At Rome the validity of the processes is examined, also the writings of the servant of God, the martyrdom, and miracles or signs, and if all things are favorable, the Pontiff signs the commission for the introduction of the cause. The Apostolic trial outside of Rome is constructed in the same way as in the causes of confessors, save that the virtues are not looked into, nor miracles examined if these are absent (c. 2102). The acts being taken to Rome, the validity of this trial is examined. Then in the three usual meetings, namely, the antepreparatory, the preparatory and the general meeting, the martyrdom and miracles, if any, arc simultaneously discussed (c. 2104). Chapter III THE PROCEDURE OF CANONIZATION Once the servant of God is beatified, the gravest obstacles to his canonization have been removed, and canonization becomes a relatively simple matter. It merely suffices to prove that two new miracles were wrought at his intercession subsequent to beatification (c.2138, §1). As soon as new miracles are reported, the Pope is requested by the postulator to permit the reopening of the cause. The Apostolic trial is again held outside of Rome, if such is the case, namely, in the diocese where the supposed miracles occurred. The trial is constructed in the same way as for beatification. The results are taken to Rome and studied in the same way as the miracles in beatification causes. At the three usual meetings the cardinals and consultors vote on the question: 1) whether there is a real and permanent cure; 2) whether the cure is miraculous. The vote in the third meeting being favorable, the Pontiff reserves his decision for a few days. If later he approves of the miracles, he orders that a decree to that effect be drawn up. At a latter meeting of the cardinals and consultors, the question super tuto is discussed, namely, whether the canonization can be proceeded with in safety. After their favorable vote, the Pope again reserves judgment. Later if he approves, he orders that a decree super tuto be issued, and sets the day for the solemn canonization in St. Peter’s (c. 2136-2141 ). For a description of the ceremonies of beatification and canonization cfr. Macken, o.c., p. 234-261. Corollary At this time it is opportune to point out, in view of the lengthy procedure just described, how unfounded are the charges of those who would accuse the Church of arbitrariness in raising her faithful children to the honors of the altar. To quote Macken (o.c. p. 35) : “There is no doubt that the formalities of these inquiries, consecrated by ancient usage, are pre­ cautions taken to guard against error and falsehood and to insure that the truth shall shine forth in all its brilliancy and splendor. 648 BEATIFICATION AND CANONIZATION 649 The investigations arc of the most searching character, extending over many years, and sometimes from century to century. The whole life of the reputed saint is subjected to the most minute and thorough inquiry, and this is especially true of the writings, the virtues and the alleged miracles. The fierce light which beats upon the throne is as nothing compared to this careful and elaborate inquiry. The proceedings throughout are conducted with much greater care and formality than the most important suit at law. The history of secular jurisprudence can show us nothing approach­ ing the extreme circumspection observed in these investigations. Numerous witnesses are examined, who must all have an intimate knowledge of the case, and at least some must possess a local and personal acquaintance with the facts. Expert witnesses are called, and the whole evidence, which is generally of a voluminous charac­ ter, is thoroughly sifted by able and impartial intellects. The judg­ ment of one court is revised by another, and the final decision in all processes is reserved to the Holy Sec. Thus the credibility of direct and reliable testimony is united to the authority of the most serious and competent judicial consideration.” The Process of St. Theresa of Lisieux The theory of beatification and canonization processes may appear in a clearer light if we append a summary of the process of one whose name has so recently been placed upon the calendar of the saints. It must be observed, however, that the rapidity of the canonization in the case of St. Theresa was exceptional, due to the numerous and remarkable favors obtained at her intercession, which induced Pope Benedict XV' to dispense from the law requir­ ing an interval of 50 years to elapse between the death of the servant of God and the discussion of the heroicity of her virtues. St. Theresa was born Jan. 2, 1873 at Alençon, France, of Louis Martin and Marie Guérin. Baptized Marie Françoise Thérèse. Professed religious vows Sept. 8, 1890 in the Carmelite monastery of Lisieux. Died Sept. 30, 1897 at the age of 24. Episcopal process begun by the Bishop of Bayeux-Lisieux with a decree issued March, 1910, ordering a search for the writings. July, 1910, the episcopal court was established. First session for swearing in the officials occurred in the chapel of St. Mary’s College, Aug. 3, 1910, and the last (109th) session in the seminary chapel at Bayeux. Remains exhumed Sept. 6, 1910, and transferred a short distance from the original grave in the cemetery of Lisieux. Acts of the episcopal process comprised no less than 3,000 closely 650 BEATIFICATION AND CANONIZATION written pages. Most sessions took place in the Carmelite chapel of Lisieux and in a room of the cathedral chapel at Baveux. Fortyfive witnesses testified in addition to consulting physicians. In February, 1912, the hearer laid the copy of the acts before the S. C. of Rites. Cardinals, bishops and religious superiors begged Pope Pius X to permit the introduction of her cause. June 9, 1914, Pius X signed the decree of the Commission of the Introduction of the Cause. Rcmissorial letters from Rome authorized Msgr. Lemonnier, Bishop of Bayeux to appoint a tribunal in his diocese for the Apos­ tolic process. This closed Oct. 30, 1917, after 90 sessions. Records of process covered 2,500 pages. The grave was opened and the body identified Aug. 10, 1917. Rome recognized the validity of the process. The antepreparatory meeting gave a favorable decision June 1, 1920; the preparatory voted “yes” Jan. 25, 1921, the general meeting approved Aug. 2, 1921. On Aug. 14, 1921, Benedict XV declared the heroicity of the virtues. Miracles approved in the general meeting Jan. 30, 1923, and confirmed by Pius XI, Feb. 11, 1923. Mar. 6, 1923, decree super tuto received favorable vote. Solemn beatification in St. Peter's Apr. 29, 1923. Cause reopened June 27, 1923. One miracle examined in the diocese of Parma, Italy, the other in the diocese of Maline, Belgium. July 11, 1924, both processes were ratified as to validity. In the general meeting on Mar. 7, 1925, miracles were voted on favorably. Decision confirmed by Pius XI, Mar. 19, 1925. Mar. 29, 1925, decree super tuto issued. Canonization May 17, 1925. ree EXTRAJUDICIAL PROCESSES The Code at this place does not consider all possible extra­ judicial processes. Wc have, c. g., already learned about the procedure required to dismiss religious extrajudicially (p. 383 ff.). And we have spoken of extrajudicial procedure followed in certain declarations and decrees of marital freedom (p. 627 ff.). At this time the Code is concerned with some few other matters in which it lays down specific norms for extrajudicial procedure, namely: 1) in the non-penal removal and transfer of pastors; 2) in the punishment of clerical non-residence, concubinage, or neglect of pastoral duties; 3) in the application of suspension ex informata conscientia. Outside of the above cases where the Code in one place, as it were, sets down a series of formalities for extrajudicial procedure, one is often at liberty to proceed as he sees fit, provided the matter is not one reserved for the courts, and provided he observes the substantive law of the Code. He will often find, however, at the end of the transaction, if he has really observed the substantive law, that he has followed a series of formalities, even though this scries of acts was not set down in one place of the Code. He will discover that his liberty of action was only apparent and not at all real. Wc have in mind the superior who desiring to proceed against a delinquent cleric extrajudicially, and in the spirit of the ideal, first gives a kind and paternal admonition, and this failing, proceeds, however reluctantly, to a rebuke, then to an informal precept, then 651 652 EXTRAJUDICIAL PROCESSES to a formal precept with a threat of punishment, then to surveillance, then to imposing the penalty in authentic form after ascertaining guilt and disobedience through the usual evidence. Wc have in mind also the procedure followed, no matter how unconsciously, by the pastor from the first interview with the intended spouses to the moment of their wedding. Hence, extrajudicial procedure does not always imply full freedom of action, simply because the Code may not set down in consecutive canons all the steps and formalities called for. See also what was said in general on p. 575-576. It remains at this time to discuss in three chapters: 1) the nonpenal removal and transfer of pastors; 2) the manner of proceeding against clerics guilty of non-residence, concubinage, or the neglect of pastoral duties; 3) the manner of inflicting suspension ex informata conscientia. Chapter I THE REMOVAL AND TRANSFER OF PASTORS At this place the Code speaks of the non-pcnal removal and transfer of pastors. If a pastor is to be removed from office in punishment, either a court trial is held, or the procedure outlined in chapter II below is followed if the offense is one of the three to be mentioned. Otherwise see p. 617-618, 696-697. Since on the one hand a pastor could suffer loss to his good name by arbitrary removal and transfer, while on the other hand the good of souls might suffer if the bishop’s hands were tied so that he could not act save in cases where a pastor were found guilty of criminal conduct, and because removals and transfers are com­ paratively frequent and necessary in the public life of the Church, therefore, in order to avoid futile and annoying recourses to the Holy See from the episcopal decrees of removals and transfers, the lawgiver has seen fit to benefit all parties concerned by setting down at this place a series of formalities to be observed when the bishop removes or transfers pastors for administrative reasons, short of guilt, i. e., for the good of souls. · The Code here has in mind the removal and transfer of secular pastors only. As to religious pastors, these can be removed by the bishop, or the religious superior ad nutum as we saw on p. 266. Since the legislation to be considered is quite clear in itself, we shall content ourselves with a mere restatement of the pertinent canons of the Code on the matter under consideration. ART. I Formalities to be Observed in All Removals and Transfers In the processes to be described a notary must always be em­ ployed who shall commit to writing all the acts of the process, and these acts shall be subscribed by all other persons to be mentioned, and shall be kept in the archives (c. 2142). Whenever warnings are required, these can be given orally 651 654 REMOVAL AND TRANSFER OF PASTORS in the presence of the chancellor or some other official of the Curia, or before two witnesses, or by means of a registered letter with receipt of delivery requested from the post office. An authentic copy of the warning should be filed in the archives, as also an authentic document attesting to the fact that the warning was administered or delivered. He who prevents the warning from being administered is considered sufficiently warned (c. 2143). If the whereabouts of the cleric are unknown, there is no need of inserting the warning in a newspaper, nor of posting a copy thereof on the doors of the chancery (Code Comm., Nov. 24, 1920; Acta XII, 577). 'I'he cleric is supposed to observe the law of residence. The synodal examiners, the parish priest consultors and the notary who are employed in these processes, after first taking an oath to that effect at the commencement of the process, arc bound to observe secrecy concerning whatever they learn by reason of their office, and especially regarding secret documents, the discussions at the consultations, the way the votes were cast, and the reasons advanced by different voters for their opinions. If they violate these rules, they shall not only be removed from office, but they may also be punished by the Ordinary with a befitting penalty, servatis servandis; moreover, they must make good any damages which they may have caused (c. 2144). In the following processes affairs are transacted summarily, but it is not forbidden to hear two or three witnesses, whether these are called ex officio by the Ordinary, or presented by the party, unless the Ordinary, after hearing the consultors or examiners, concludes that the presentation of the witnesses is merely to delay a decision. Witnesses and experts shall not be heard save under oath (c. 2145). From the Ordinary’s decree there is only one remedy, namely, recourse to the Holy See. If recourse is taken, all the acts of the process shall be transmitted to the Holy See. Pending the recourse, the Ordinary cannot validly and permanently confer the parish or benefice of which a priest has been deprived upon another cleric (though he may appoint a vicar substitute); cfr. c. 2146. Recourse is allowed within ten days from the reception of the Ordinary’s decree, and the cleric shall inform the Ordinary that he is taking recourse (S.C. Council, Jan. 14, 1924; Acta XVI, 162). In the processes to be described it will make for clearness if one remembers that a removable office holder is usually given one chance to explain and two notices or warnings, whereas an irremov­ able cleric is given two chances to explain and three notices or warnings. REMOVAL AND TRANSFER OF PASTORS 65S ART. II Removal of Irremovable Pastors An irremovable pastor can be removed from his parish for any cause which renders his ministry harmful or at least fruitless, even though the cause is not imputable to him in guilt. Such causes or reasons arc especially the following: 1 ) Incompetency, or a permanent mental or bodily infirmity, which renders the pastor incapable of discharging his duties properly if, in the judgment of the Ordinary, adequate provision for the good of souls cannot be made through the appointment of a vicar adjutant in accordance with c. 475; 2) The odium of the people, even though it be unjust and not general, provided it is of such nature as to prevent the ministry of the pastor from bearing fruit, and provided it is foreseen that this popular attitude will not cease within a short time; 3) Loss of the pastor’s good name among upright and serious people, whether this results from levity in the pastor’s conduct and general manner of life, or from a past delinquency which is now brought to light although it has escaped punishment by reason of prescription, or from the misconduct of a member of his household, or of a relative, unless the pastor’s reputation may be sufficiently restored through the departure of said individual or individuals; 4) A probable occult delinquency imputed to the pastor from which the Ordinary prudently foresees the possibility of grave offense to the faithful ; 5) Maladministration of temporalities gravely detrimental to the church or benefice, whenever this evil cannot be remedied either by withdrawing from the pastor the right of administration, or in some other way, even though the pastor otherwise exercises his spir­ itual ministry with success (c. 2147). Whenever in the prudent judgment of the Ordinary the pastor seems to have any of the above reasons verified in his case, he (the Ordinary) after having heard the advice of two synodal examiners, and after having discussed with them the reality and serious nature of the reason for removal, shall invite the pastor orally or in writing to resign the parish within a fixed time, unless there is question of a pastor who is mentally afflicted. For the validity of the process it is required that the invitation state the reason for the removal and the proofs establishing the reality of the reason (c. 214S). If within the stated time the pastor neither resigns, nor asks 656 REMOVAL AND TRANSFER OF PASTORS for a delay, nor challenges the reasons advanced for his removal, the Ordinary shall remove the pastor from his office at once, neither is it necessary that he abide by the ruling of c. 2154 in this case, provided he has first made sure that the pastor was notified of the invitation to resign, and that he was prevented by no legitimate impediment from answering. If the Ordinary is not certain of these two points, he shall make certain thereof either by repeating the invitation to resign or by extending the term for the giving of an answer (c. 2149). If the pastor resigns his parish, the Ordinary shall declare the parish vacant by reason of resignation. But the pastor may substitute for the reason adduced by the Ordinary another reason less distaste­ ful, provided it is true in fact and honorable, e. g., that he resigns in order to decline to the wishes of the Ordinary or because of poor health, etc. The resignation may be made absolutely or conditionally, provided the conditional resignation can be lawfully accepted by the Ordinary, and is in fact so accepted. Moreover, the resignation to be valid must be made in writing, or orally in the presence of two witnesses (c. 2150). If the pastor wishes to attack the reason for the removal as advanced in the invitation to resign, he may request time to produce his arguments, and the Ordinary may grant him this delay according to his prudent judgment, provided the delay does not seem likely to prove detrimental to the good of souk (c. 2151). For validity it is necessary that the Ordinary consult with the two aforementioned synodal examiners concerning the reasons offered by the pastor against the invitation to resign, and that he either approve of the reasons or reject them. His decision, whether affirma­ tive or negative must be made known to the pastor by wav of a decree (c. 2152). Within ten days the pastor can interpose recourse to his Ordinary against the decree of removal, and, lest he act invalidly, the Ordinary must, after having heard two parish priest consultors, examine, approve or reject the new objections which the pastor may offer. And these he shall weigh, admit or reject jointly with the original objections in a meeting with the consultors. At this stage the pastor is permitted to offer new witnesses which he can prove he was unable to produce prior to now, but subject to the ruling of C. 2145, §1. The Ordinary’s decision must again be made known to the pastor by means of a decree, i. e., in a written order (c. 2153). Recourse to the Holy Sec against this final decree is allowed within ten days. Having conferred with the synodal examiners or the parish REMOVAL AND TRANSFER OF PASTORS 657 priest consultors who took part in decreeing the removal, the Ordinary shall provide for the removed pastor as best as he can by either transferring him to another parish, or by giving him another office or benefice for which he is competent, or by allowing him a pension, as the case may be and the circumstances warrant. Other things being equal, more favor should be shown a pastor who resigns than a pastor who has been removed (c. 2154). The question of how the removed pastor is to be provided for may be determined by the Ordinary in the decree of removal itself, or later on, but as soon as possible (c. 2155). A priest who has been removed from his parish must leave the parish residence as soon as possible, and he must turn over to the new pastor or the administrator whatever belongs to the parish. But if the removed pastor cannot conveniently transfer from the parish residence by reason of infirmity, the Ordinary shall leave him the occupancy of the house, even the exclusive right of occupancy if need be, and this as long as his infirmity continues (c. 2156). ART. Ill Removal of Removable Pastors A removable pastor may also be removed from his parish for a just and grave cause in accordance with c. 2147 (c. 2157). That canon contains the reasons justifying removal of an irremovable pastor, and they apply with equal, if not greater, force to the case of a removable pastor. If the Ordinary judges that one of the aforesaid reasons is present in the case, he shall warn and exhort the pastor in a fatherly manner to resign his parish, indicating at the same time the reason which renders his pastoral ministry harmful to the faithful or at least without effect (c. 2158). If the pastor neither resigns nor asks for time, nor challenges the reasons adduced by the Ordinary, and this within the term allowed by the Ordinary, the latter can proceed as against the irremovable pastor described in c. 2149. But if the pastor within the term assigned for answering, rejects the invitation to resign, he must do this in writing and state his reasons for refusal to resign, and these reasons the Ordinary, if he intends to proceed validly, must weigh with the aid of two synodal examiners (c. 2159). If, after hearing the advice of the examiners, the Ordinary judges that the reasons advanced by the pastor are not legitimate, 658 REMOVAL AND TRANSFER OF PASTORS he shall repeat his paternal warnings to the pastor adding a threat of removal in the event that the pastor does not spontaneously resign the paush within a reasonably predetermined time (c. 2160). When this term has lapsed, which the Ordinary may extend according to his prudent judgment, the Ordinary shall issue the decree of removal. Provision shall be made for the resigning, or the removed pastor in accordance with c. 2154-2156 (c.2161). ART. IV Transfer of Pastors If the common good requires that a pastor be transferred to another parish from the present parish which he governs with success, the Ordinary shall propose the transfer to the pastor and persuade him to consent to the transfer for the love of God and the good of souls (c. 2162). It should be noted that there is no occasion for removal when a pastor governs his parish with good results, and if no cause as listed in c. 2147 can be brought forward against him. The only course then open to the Ordinary who wishes to provide for a parish ad quam which could make good use of the pastor in question is for the Ordinary to transfer the pastor. 'l'hc Ordinary cannot transfer an irremovable pastor against his will without special faculties obtained from the Holy Sec (c. 2163, §1). It is supposed, we repeat, that there is no reason justify­ ing removal in the strict technical sense. But a removable pastor can be transferred even against his wishes if the parish to which he is to be transferred is not of too inferior a rank, and provided the rulings of the following canons are observed (c. 2163, §2). If the pastor does not accede to the advice and persuasion of the Ordinary, he shall explain his reasons in writing (c. 2164). If notwithstanding the objections raised by the pastor, e. g., ill health, advanced age, etc., the Ordinary judges that he should not recede from his original plan to transfer the pastor, he must, in order to act validly, hear the opinion of two parish priest consultors on those objections, and together with them he must weigh the circumstances in which the parish ad quam and the parish a qua find themselves, as also the reasons which convince him of the utility or necessity of the transfer (c. 2165). If, after having heard the parish priest consultors, the Ordinary deems that the transfer should take place, he shall repeat his REMOVAL AND TRANSFER OF PASTORS 659 fatherly warnings to the pastor that he accede to the will of his superior (c^2166). Having done this, if the pastor still refuses, and the Ordinary still insists that the transfer be made, he shall command the pastor to betake himself to the new parish within a specified time, adding to this command a notice to the effect that after the prescribed inter­ val the parish which the pastor now has will become ipso facto vacant. Upon the lapse of this fixed term the Ordinary shall declare the parish vacant (c. 2167). Chapter II EXTRAJUDICIAL PUNISHMENT OF CERTAIN OFFENSES Offenses spoken of at this place arc: 1) non-residence; 2) con­ cubinage; 3) neglect of pastoral duties. Let it be recalled here that the general formalities described in Art. I of the preceding chapter find equal application in the processes to follow, e. g., as regards the need of a notary, the oath of secrecy to be taken by the notary, the examiners and consultors, the manner of administering the warnings, the right of recourse, etc. ART. I Punishment of Non-Residence In the case of a pastor, canon, or any other cleric who fails to observe the law of residence to which he is held by reason of a benefice, the Ordinary shall warn him, and in the meantime, if there is question of a pastor, he shall make provision at the pastor’s expense lest the welfare of souls suffer detriment. When issuing the warning, the Ordinary shall recall the penalties which non-resident clerics incur, especially as contained in c. 188, n. 8 where the law considers non-compliance with the warning after a month as equiva­ lent to tacit resignation of the benefice, and he shall intimate to the cleric that he must resume residence within the time determined by the Ordinary in the warning (c. 2168). If within the time specified the cleric neither takes up his res­ idence, nor offers reasons for his absence, the Ordinary shall declare the parish or non-parochial benefice vacant, provided he has ascer­ tained for certain that the warning reached the cleric and that the latter was not legitimately impeded from answering, as explained above (c. 2169). If the cleric resumes his residence, the Ordinary is not only bound to deprive him of his salary in proportion to the length of his illegitimate absence, but he may also punish him with other penalties proportionate to his guilt, if the case warrants this (c. 2170). 660 EXTRAJUDICIAL PUNISHMENT 661 If the cleric does not return but offers reasons for his absence, the Ordinary taking counsel with two synodal examiners, and mak­ ing opportune investigations if necessary, shall consider whether the reasons for absence arc lawful (c. 2171). If, after having heard the examiners, the Ordinary judges that the reasons for the absence are not legitimate excuses, he shall again specify a time within which the cleric must return, depriving him in the meantime of his salary pro rata absentiae (c. 2172). If a removable pastor fails to take up residence within the determined period the Ordinary shall at once proceed to deprive him of his parish; if he returns, the Ordinary shall give him a precept not to leave again without his written permission under penalty of ipso facto privation of his parish (c. 2173). In the case of a cleric who has an irremovable benefice, and dees not return but offers new excuses a second time for his absence, the Ordinary shall weigh these additional excuses with the examiners as explained in c. 2171. If neither these excuses are considered legitimate, the Ordinary, without taking anything further into con­ sideration, shall command the cleric to return within the time already specified, or now to be specified anew, and this under penalty of ipso facto privation of his benefice. If then he does not return, the Ordinary shall declare him deprived of his benefice; but if he returns, the Ordinary shall order him not to leave again without his written permission under penalty of ipso facto privation of his benefice (c. 2174). In neither case shall the Ordinary, in consultation with the examiners, declare a benefice vacant unless, in addition to weighing the excuses for absence alleged by the cleric, he shall have made certain that the cleric could have obtained his written permission to leave had he so desired (c. 2175). ART. II Punishment of Concubinage In the case of a cleric who, contrary to the ruling of c. 133 keeps in his house or in any manner regularly associates with a suspect woman, the Ordinary shall warn him to dismiss her, or to cease his visits, as the case may be; and he shall add to his warning a threat of the penalties established by the law against clerics guilty of concubinage, as contained in c. 2359 (c. 2176). If the cleric neither obeys the command, nor answers by offering 662 EXTRAJUDICIAL PUNISHMENT an explanation, the Ordinary, after having made certain that the cleric could either obey or answer, shall: 1) suspend him a divinis; 2) deprive a pastor moreover of his parish at once; 3) proceed fur­ ther against a cleric who has a non-parochial benefice, and who has now been suspended a divinis, by depriving him of half his income at the end of two months from the date of the suspension supposing the cleric has not amended, and by depriving him of his whole income after three more months of un repentance, and of the benefice itself after another three months (c. 2177). If the cleric, who does not obey, at least offers reasons of excuse, the Ordinary shall hear the opinion of two synodal examiners on the excuses offered (c. 2178). If, after having consulted with the examiners, the Ordinary concludes that the reasons are not lawful, he shall inform the cleric as soon as possible of this, his decision, at the same time giving him a formal precept to comply within a short time as specified by himself (c. 2179). In the case of a removable pastor who refuses to obey, the Ordinary can at once proceed against him with the penalties de­ scribed in c. 2177 above; but if the cleric who refuses to obey after a second warning has an irremovable benefice, he may offer new excuses, and the Ordinarjr shall examine them in consultation with the synodal examiners. And if these new reasons arc likewise rejected as insufficient, the Ordinary shall warn the cleric to obey within a reasonable time, and after the lapse of this time he shall proceed against the disobedient cleric by means of the penalties described in c. 2177 above (c. 2180, 2181 ). ART. Ill Punishment of Pastoral Negligence In the case of a pastor who grossly neglects or violates pastoral duties in respect to the points to be mentioned, the bishop shall give him a warning, recalling to his mind both the strict obligation of conscience involved in the case, and the penalties established by the law for the offenses in question. The pastoral duties intended at this place are: 1) to conduct divine sendees, to administer the sacra­ ments, to become acquainted with his parishioners, to correct the erring, to care for the needy, and to instruct the children (c. 467, §1) ; 2) to visit the sick and the dying, and to administer to them the sacraments (c. 468, §1) ; 3) to see that the church is kept clean EXTRAJUDICIAL PUNISHMENT 663 and neat, and free from transactions alien to its sacred purpose (c. 1178); 4) to give catechetical instructions to the children, and to preach, especially by way of a homily, to the people on Sundays and holydays of obligation (c. 1330-1332, 1344). Cfr. c. 2182 where references to these duties are made. If the pastor does not reform, the bishop shall rebuke him and punish him otherwise with a befitting penalty in proportion to his guilt; and this he shall do when, after having conferred with two synodal examiners, and after having given the pastor an opportu­ nity to explain himself, he shall have concluded that sufficient proof is at hand both to the effect that the aforesaid pastoral duties have been neglected time and again in serious matters, and that the omissions or violations cannot be excused on any lawful pretext (c. 2183). If both the rebuke and the penalty prove unavailing, the Ordinary, after satisfying himself in accordance with the procedure of the preceding canon that gross neglect and violation of pastoral duties continues, and that it is culpable on the part of the pastor, shall at once deprive a removable pastor of his parish. But in the case of an irremovable pastor who thus continues to neglect his office after being warned, rebuked and punished, the Ordinary shall issue another warning, and when this has proved futile according to the procedure of c. 2183, the Ordinary shall deprive him of his parish (c. 2184-2185). ART. IV Suspension ex Informata Conscientia Prior to the Council of Trent no cleric could be denied promotion to higher orders, unless the superior had first proved by way of a formal trial that the candidate labored under some irregularity. Neither could the cleric be suspended from office, or from the exercise of orders already received save by way of a criminal trial. This led to countless abuses. Families anxious to sec one of their sons enjoy the security, wealth and influence which sacred ordination offered in those days found little difficulty in bribing an unscrupulous ecclesiastical judge to render a favorable sentence in case the fitness of their son was questioned and chal­ lenged by the bishop. Again, richly beneficcd clerics living in con­ cubinage, or guilty of other offenses to the great scandal of the faith­ ful, could not be suspended from benefice save by way of a formal 664 EXTRA J UDICIAL PUNISH M ENT trial ; whereas avaricious judges and mercenary witnesses could easily be found willing to betray their sacred trust and honor. To counteract these evils the Council of Trent permitted bishops and regular prelates to forbid their subjects the right to ascend to higher orders, or to exercise orders already received, if the superiors had ascertained only extrajudicially the cleric’s unfitness in the one case, or his criminal offense in the other. At the present day suspension ex informata conscientia is a penalty only. It cannot be used as an administrative measure to debar a cleric from higher orders. Clerics can still be forbidden to receive higher orders, and this extrajudicially, but the prohibition is no longer suspension, because not a penalty (c. 2222, §2). Suspension ex informata conscientia simply means that, as the term denotes, the superior’s conscience is informed concerning the commission of an offense, and the guilt of the offender, even though this information was obtained extrajudicially. It docs not mean that the superior alone knows of the offense. It docs not even imply that the suspended cleric is unaware of the reasons for the suspension. In fact, the superior is allowed to disclose the reasons to him, but need not (c. 2193). Between ordinary suspension and suspension ex informata con­ scientia we find several differences. 1 ) It is not certain whether the ordinary suspension can be inflicted as a vindictive penalty outside of a trial (cfr. p. 617). If that can be done either in virtue of c. 1933, S4, or c. 2222, §1, then suspension ex informata conscientia has quiet outlived its useful­ ness. 2) The suspension ex informata conscientia is always a vindic­ tive penalty; ordinary suspensions can be censures (cfr. p. 688). 3) Suspension ex informata conscientia suspends only from office, i. e., from the jurisdiction attached thereto, not from orders (c. 2186). 4) The most striking difference is that suspension ex informata conscientia can be inflicted without the superior needing to threaten it beforehand by way of a precept, for the Ordinary need not indicate the reasons for the suspension (c. 2193). We said that the Ordinary need not indicate the reasons for the suspension, and we should add to the suspended cleric himself. But the latter has the right of recourse to the Holy See, and if he should take recourse, the Ordinary must forward to Rome the proofs of the committed offense, and the reasons justifying the extra­ ordinary measure of punishment (c. 2194). This being true, the EXTRAJUDICIAL PUNISHMENT 665 charges of those who see in this institution an instrument of oppres­ sion are automatically answered. Suspension ex informata conscientia is justified if the offense is certain but occult so that a trial is impossible. Or if the offense is public, but a trial is still impossible, for the witnesses cannot be prevailed upon to testify in court, or if civil legislation, or the accused himself, will impede the course of justice in open court (c. 2191). In the 19th century more than one bishop of Italy resorted to this penalty in the case of those of their clerics who publicly advocated the abolition of the temporal power of the Pope. ON OFFENSES AND PENALTIES In the introductory part of our manual, when we spoke of the Church as a sovereign society, we saw that by reason of that sovereignty the Church has the authority from her divine Founder not only to issue true commands in the form of laws binding in conscience, but that she likewise possesses coercive power with which to enforce her legislation and commands. This was proved not only from Sacred Scripture, but from the practise of the Apostles and of the early Church as well. And reason itself supports this coercive right and power in every lawmaking body. For laws would be idle if their violation involved no punishment. It is true that the primary mission of the Church must be the salvation of souls, that she ought to heal rather than bruise, and that her most powerful weapon will always be found in the influence she exercises directly over the minds of men by employing what is known as moral suasion. But from the earliest times the bishops of the Church must have realized that situations could arise where moral suasion alone would not prove adequate to maintain peace and harmony in the Christian communities. Time and again direct appeal to the con­ science of the delinquent was undoubtedly employed without success. Had there been question of occult offenses, or of public offenses even, but which harmed the offender more than the community, the pastors in the Church might have felt that they had done their duty simply by warning and reprimanding the offender, and for the rest leaving his fate in the hands of the divine judge. 666 OFFENSES AND PENALTIES 667 Situations where moral suasion must have proved futile from the start can easily be imagined, and where, if the bishops had not resorted to more severe measures, the Christian society would soon have ceased to exist as a peaceful united body of believers. Obviously, therefore, the bishops must have convinced themselves from the very beginning that they could and should proceed with penalties in the strict sense of the word against those who taught heretical doctrine, and threatened thereby to rend apart the seamless garment of Christ, which is the Church. Moral suasion must have proved a weak instrument, c. g., against those who obstinately persisted in foment­ ing schism within the Christian communities, against those, i. e., who preached disobedience to the lawfully constituted authorities. Or, suppose a cleric had succeeded, e. g., with the help of the civil authorities, in ejecting a lawfully appointed office holder, let us say a bishop, and intruding and taking possession of that office himself, would the church authorities have to stand idly by, or strive at the most to restore order by appealing only to the conscience of the intruder? If such were the case, then any obstinate intruder into an office would leave the Christian community perplexed and divided as to whom they ought to show loyalty and obedience, the present or the former incumbent, and this again would lead to new schisms. The examples here taken at random suffice to illustrate how impossible it would be to govern even a spiritual society by moral suasion alone. In addition to this argument taken from natural reason, as it were, we have the further truth that the Christian Church was established as a sovereign society. Now every such society has the right to defend itself against unjust aggressors, and to repel force with force. How this coercive force is as a matter of fact used today in the Church, and what rules govern its lawful exercise is the object of our present study. We shall in three chapters consider: 1) offenses in general; 2) penalties in general; 3) particular offenses and penalties. Chapter I OFFENSES IN GENERAL This chapter will discuss in separate articles: 1) the nature of an ecclesiastical offense; 2) how offenses are classified; 3) the principles of criminal imputability; 4) attempted and frustrated crimes or offenses. ART. I Nature of an Offense The present fifth Book of the Code under consideration is entitled : De Delictis et Poenis. We may translate the word delictum by using any of several English equivalents, such as offense, crime, misdemeaner, delict, delinquency, etc., just so long as we understand throughout when employing any such words the same thing the Code means by a delictum. Unlike civil law whose violations are graded according to the gravity of the sanctions attached, and are designated by the above specific names, canon law has but one name for all violations of the law. By delictum c. 2195 understands an external and morally im­ putable violation of a law or precept to which a canonical sanction, whether determinate or indeterminate, has been attached. This definition contains four essentials of an ecclesiastical offense: 1) there must have been a violation of a law or precept; 2) the transgression must have been external; 3) it must have been morally imputable to the agent; 4) the law or precept must have carried a penalty. First, there must have been a transgression, i. c., disobedience to a command. And since the command must have been conveyed through a law or canonical precept, it follows that only the com­ mands of superiors with external jurisdiction in the Church can give rise to an offense in the event of their violation. Moreover, so-called attempted and frustrated crimes or offenses are not delicta in the strict sense of the word since there is here no actual violation. 668 OFFENSES IN GENERAL 669 Secondly, the transgression must have been external. The desire to transgress the law or precept, while possibly an internal sin, is not an ecclesiastical offense. The Church in the external forum does not, and cannot, punish mere sins of thought and desire, for there is no way to prove their commission, nor can such sins possibly disturb the public and social order of the Christian community. They can be judged only in the internal forum because there the penitent is his own accuser and witness. Thirdly, the transgression must have been morally imputable. In other words, the delinquent must have violated the law or precept knowingly and willingly. In a separate article wc shall sec more fully what imputability imports. Fourthly, the law or precept must have threatened a penalty. Sometimes the law or precept contains a specific penalty, e. g., suspension, excommunication, privation of office, etc. At other times the penalty is threatened without its nature being determined, as where the law would contain the clause: secus congruis poenis punia­ tur, or, pro qualitate, pro gravitate delicti justa poena plectatur, etc. In a case of this kind the application of the penalty may he manda­ tory, although the kind of penalty is optional. Without this fourth element there can be no delictum. Neglect of the Easter duty may be a grave sin, but since the common law establishes no penalty in this case, omission of the Easter duty is not an ecclesiastical offense. The Church punishes no violation unless punishment has been threatened, and the command has been disobeyed nevertheless. For in this latter supposition we seem to find obstinacy and defiance in the offender. However, c. 2222, §1 seems to be an exception to this general rule for there the superior can mete out punishment even though no penal law, or penal precept, had preceded. ART. II Offenses Classified By reason of object we can have offenses against faith, religion, authority, life, liberty, property, reputation, good morals; also crimes of falsehood and forgery, maladministration and reception of the sacraments, simoniacal conferment and acceptance of ecclesiastical offices, abuse of office, etc. When treating offenses in particular, the Code in Part III of the present Book follows this classification. By reason of forum an offense may violate only ecclesiastical law, or only civil law, or both. Violations of the civil law the Church 670 OFFENSES IN GENERAL does not judge saving only to the extent that sin may be involved. Or again, where clerics and others who enjoy the privilege of the church forum transgress the penal civil law. Because of this priv­ ilege, not the civil court but the church court is competent to judge in the case of clerics who disobey the secular law. Mixed crimes are subject to the judgment of both authorities, e. g., abortion. However, c. 1933, §3 advises the ecclesiastical judge to withhold criminal action if the secular court has already prosecuted the offense in the case of a layman (cfr. c. 2198). 3) By reason of publicity we have occult, public and notorious crimes. An occult crime is one which is not public. A public offense is one which is divulged, or one which has been committed under such circumstances that a prudent person must conclude that it will soon become divulged. No hard and fast rule can be laid down here to distinguish public from occult offenses. Some authors hold that knowledge of the delinquency to six persons in a small town, and to a correspondingly larger number in a correspondingly larger locality constitutes a public offense, although a smaller number of persons suffices if they are loquacious. Probably D'Annibale (Summa Theologiae Moralis, I, n. 242, note 49) lays down the best rule when he says: Quia res facti est, in aestimatione boni viri esse debet. A notorious offense is one which is public both as to its commission, its author and its subjective imputability. If the crime is public only in the sense that its commission is known and also its author, but it is not established that the delinquent is subjectively guilty of sin, e. g., he may be excused by reason of ignorance, grave fear, etc., the offense is merely public, not notorious. Certainty concerning imputability may result from the judicial confession of the accused, or from the sentence of the ecclesiastical court, and then the offense is notorious by notoriety of law, or the certainty may be gathered from circumstances if they are such that no one can excuse the delinquent under any pretext which the law can offer, be this ignor­ ance, grave fear, etc.; e.g., public enrollment in a non-Catholic sect, and in such cases the offense is notorious by notoriety of fact (c. 2197). The distinction between occult, public and notorious offenses is of practical importance in the observance and remission of penalties. ART. Ill Principles of Imputability We said that to have a delinquency there must be moral im­ putability, i. e., the law or precept must have been disobeyed with full knowledge and consent. OFFENSES IN GENERAL 671 In the present article we shall consider the principles which determine the presence of imputability, and the circumstances which lessen or aggravate it. They will serve mostly as norms for those superiors whose penal precepts arc disobeyed. Criminal trials arc rare, but if they occur judges will also apply these norms. They may be of assistance also to confessors to determine whether the penitent has contracted a latae sententiae penalty, although addi­ tional rules for such cases arc found in c. 2229. §1. General Norms of Imputability Imputability may arise: 1) from malice; 2) culpable ignorance short of malice; 3) negligence, short of malice and culpable ignor­ ance (c. 2199). Hence, whatever lessens or increases malice, or negligence, or culpability in ignorance, will at the same time lessen or increase imputability (c. 2199). By malice {dolus) we understand the deliberate will to break the law so that any lack of knowledge on the part of the intellect, or lack of liberty on the part of the will, is opposed to malice. But once the law or precept has been violated, malice is presumed, and it devolves upon the accused to prove its absence; it is not the duty of the superior to prove malice in the accused (c. 2200). If one breaks the law, being inculpably ignorant of the exist­ ence of the law, there is no imputability; otherwise imputability is lessened only in proportion to the culpability of one’s ignorance. Ignorance of the penalty only, lessens but does not destroy imputa­ bility entirely. The principles here stated apply also to inadvertance and error (c. 2202). If a person violates the law by the omission of due care and diligence, his imputability is lessened according to the principles to be determined by the judge. If the person foresaw the evil conse­ quences of his negligence, e. g., failure to guard the tabernacle key, and nevertheless failed to use those precautions which the average diligent person would have employed, his fault approaches the degree of malice (c. 2203). §2. Causes Which Destroy, Lessen or Increase Imputability Infant age and insanity—Those who actually lack the use of reason arc incapable of crime (c. 2201. §1). To this class presumably belong all persons under the age of seven, and all persons who, though habitually enjoying the use of reason, arc momentarily de­ prived of reason through grave fear, passion etc. The habitually insane are presumed incapable of crime even though they have lucid 672 OFFENSES IN GENERAL intervals, and appear sane in certain lines of thought and action (c. 2201, §2). Mental debility lessens but does not exclude imputa­ bility (c. 2201, §4). Drunkenness and other states of mental stupor—Δ. delinquency committed in the state of voluntary intoxication is not entirely free of imputability, but the imputability is less than if the same crime were committed by one in the full possession of his faculties, save where one became drunk purposely to gain courage to commit the offense, or to plead inculpability. Where a law is transgressed in the state of involuntary intoxication, imputability must he considered absent altogether if drunkenness entirely deprived the person of the use of reason; if the use of reason was not entirely absent, imputability is only lessened. The same principles apply to similar disturbances of the mind, e. g., stupor caused by drugs (c. 2201, £3). Accident—An accident which could not he foreseen, or which if foreseen could not be avoided, excuses from all imputability (c. 2203, §2). Minor age—Minor age lessens imputability in proportion to the proximity to infancy, unless the contrary is evident, e. g., in the case of a precocious child (c. 2204). Much is left to the discretion of the judge, or superior. Physical force—This excludes all imputability if it left one completely powerless to resist the force (c. 2205, SI). Fear—Fear, i. e., moral force, produced through threats, or other causes, excuses from all guilt, whether the fear is absolute or only relative. But only grave fear will so excuse (cfr. p. 134 concerning what is meant by grave fear). Thus in times of persecu­ tion fear of arrest would excuse a cleric from wearing the ecclesiasti­ cal garb. But if the fear motivates an act which is intrinsically wrong (violation of the divine, not ecclesiastical, law), e.g., regular attendance at non-Catholic services for fear of losing one’s clients in business, or if the act involves contempt of faith or of ecclesiastical authority, e. g., where through human respect, i. e., fear of ridicule alone, one violates Friday abstinence, or where an act involves harm to souls, as when in time of a pestilence a pastor neglects the law of residence, in these cases imputability is only diminished, but not totally excluded (c. 2205, §2,3). But grave fear excuses from censures though the offense be intrinsically wrong (cfr. p. 681). Necessity and grave inconvenience—These causes excuse from imputability to the same extent and within the same limits as grave fear described in the preceding paragraph (c. 2205, 82). Necessity differs from grave inconvenience in that the former supposes a conflict of two laws both of which cannot be observed simultaneously, OFFENSES IN GENERAL 673 as where one omits Sunday Mass to remain at home and care for a sick member of the family; whereas the latter supposes the conflict of the law with one’s interests, as where a man must omit Sunday Mass by reason of his employment otherwise he would risk losing his position. Self-defense and provocation—Legitimate self defense against an unjust aggressor excuses from all imputability, provided one took only those measures which were absolutely necessary to defend him­ self (or his liberty, property, etc.). If those bounds were exceeded, imputability is only lessened. Likewise when one acts upon provoca­ tion, e. g., provoked to a duel, this excuses somewhat, but not entirely, a violation of the law. In all such cases it belongs to the judge or superior in the external forum, and to the confessor in the sacra­ mental forum, to determine the degree of culpability (cfr. c. 2205, §4). Passion and impulse—Where these arise from emotions (anger, envy, lust, etc.) so powerful as to momentarily deprive the agent of the free use of reason they excuse from all imputability. Where they only partially disturb the mental processes, they will correspond­ ingly merely lessen responsibility. If they are not antecedent to the act, but subsequent, from freely having worked oneself up to a pitch c. g. by conscious brooding over one’s injury, the passion which then follows and motivates a violation of the law rather increases culpability (c. 2206). Abuse of office—If one breaks the law by the betrayal of his authority or office, his responsibility is aggravated. For this reason sacramental solicitation is so severely punished in canon law. im­ putability is likewise increased in proportion to the dignity of the offending or offended person. Thus, canon law punishes more severely assaults upon prelates than assaults upon the lower clergy (c.2207). Repeated offenses—Those who commit the same offenses (recidivi), or even different kinds of offenses, increase their responsi­ bility· and deserve to be punished more severely. Hence, while a mere penance may be appropriate in the beginning, more severe punishment should be meted out in proportion as misconduct con­ tinues (cfr. c. 2208). Complicity—To determine the degree of imputability in the case of cooperation, c. 2209 distinguishes between principals and accessories. 1 ) Principals—The following are considered principals and as being equally liable: a) those who cooperate in the commission of the deed as a result of common conspiracy' (c. 2209, §1 ) ; b) those 674 OFFENSES IN GENERAL who commit a crime which by its very nature requires an accomplice, e. g., adultery, a duel, etc. (c. 2209, §2) ; c) agents whose cooperation was necessary, even though they acted in the name of a principal, as in the case of abduction (c. 2209, §3). 2) Accessories—Generally, accessories do not incur the same degree of guilt as principals, and sometimes they can disclaim all responsibility. In the class of accessories the Code places: a) those whose cooperation was not necessary but merely facilitated the mis­ deed, provided there was no previous conspiracv (c. 2209. $4) ; b) those who partially withdraw prior to the misdeed, e. g., if the druggist in selling the medicine for abortion advises against its use (c. 2209, §5); c) those who cooperate negatively by neglecting to discharge their duty, e. g., officers of the law who do not interfere with a duel (c. 2209, §6); d) accessories after the deed, i.e., those who had planned beforehand with the delinquent to shelter him, to share in the spoils, etc. But in the absence of a prior mutual understanding such subsequent acts involve no guilt, unless they are expressly punished as offenses in themselves, c. g., permitting a sus­ pended priest after he has been condemned to suspension to celebrate Mass (c. 2209, §7). All principals as described above in ( 1 ) are held to restitution and indemnification in solidum, even though the judge condemned each pro rata. Hence, the conscientious will have to supply in default of the less scrupulous who happen to ignore the sentence of the court, especially the sentence of the ecclesiastical court whose execution, unlike secular court sentences, must often be left to the conscience of the individual (c. 2211). ART. IV Attempted Offenses When all preparations have been made to commit a crime, but the deed is not consummated either because one desists from his proposal, or because the means have been found inadequate, or because a third party intervenes, wc have an attempted crime, which is more specifically designated a frustrated crime if the deed was prevented through the agency of another (c. 2212). When the law establishes a penalty for a certain offense, the penalty is not incurred unless the delinquency is perfect in the strict sense of the law, even though one remains guilty of the sin of desire in foro conscientiae (c. 2228). Thus, e.g., one who has OFFENSES IN GENERAL 675 recourse to the lay court to prevent the exercise of ecclesiastical jurisdiction does not incur the excommunication of c. 2334 if the recourse was not effective (Code Comm. July 25, 1926; /icta XVIII, 394). But in some cases an attempted crime is punished with a penalty of its own (c. 2212, §4). Thus attempted suicide is pun­ ished (c. 2350, §2), as well as the attempt to bribe court officials (c. 2407). Chapter II PENALTIES IN GENERAL Penalties arc inflicted to correct offenders and to punish offenses. Having considered ecclesiastical offenses in the foregoing chapter, it remains to speak of ecclesiastical penalties, i. c., penal sanctions. In separate articles we shall consider: 1 ) the nature of ecclesiasti­ cal penalties; 2) the various kinds of such penalties; 3) superiors with punitive powers; 4) the subject of penalties; 5) the interpretation of penalties; 6) the manner of imposing penalties; 7) requisites of a just penalty; 8) redress against penalties; 9) the cessation of penalties. ART. I Nature of an Ecclesiastical Penalty An ecclesiastical penally is the deprivation of some goods or benefits effected and decreed by the lawful ecclesiastical authority for the correction of the delinquent and the punishment of the offense (c. 2215). First, a penalty is a deprivation. Like the ancient Roman State, and modern States with advanced culture, the Church makes punish­ ment consist not so much in the infliction of positive suffering as in the deprivation of goods. Secondly, it is the deprivation of goods or benefits. 'I'he Code uses the word bonum. This bonum is something which the Church conferred or can confer, e. g., the sacraments and sacramentals, the public prayers of the faithful, ecclesiastical jurisdiction, offices, digni­ ties, etc. Temporal goods the Church, too, can withdraw, for al­ though she docs not confer these, she protects them in the sense that she protects and defends all natural rights of man. Because this element is lacking in remedial penalties and pen­ ances, these are not real penalties in the strict sense (cfr. p. 682). It is true that these latter run counter to self-love, they cause some mental pain and they disturb the emotions. But they withdraw no possessions, no spiritual goods, no temporal goods, or rights thereto, 676 PENALTIES IN GENERAL 677 as we shall see. They do not even impair one’s good name, for they have no place unless one is either risking his good name by his present conduct and in the judgment of serious-minded Catholics, or has lost his good name through his misdeeds. Thirdly, it is a deprivation decreed by ecclesiastical authority. If spiritual goods alone were withdrawn, we would have no need to add this third element. But if temporal goods are withdrawn, whether the penalty is ecclesiastical or civil can be judged only by the authority who imposes it. Fourthly, it is a deprivation intended for the correction of the offender and the punishment of the offense. This two-fold object the Church keeps in mind in every punishment. However, some penalties aim primarily at the correction of the offender, such as censures, and others primarily at the suppression of the misdeed and the repair of scandal, such as vindictive penalties, as we shall see. Sometimes an administrative act of the superior can work a great hardship for the subject, and the act is not punitive in nature, e. g., the removal of a pastor because of sickness, old age, etc., i. e., for administrative, not penal, reasons. Here there is no penalty because the fourth clement is lacking. ART. II Division of Penalties Ecclesiastical penalties are cither: 1) spiritual or temporal; 2) determinate or indeterminate; 3) latae sententiae or ferendae sententiae; 4) a jure or ab homine; 5) remedial, medicinal or vindic­ tive. These divisions often overlap, and do not necessarily exclude one another. Thus, the same censure may be either latae or ferendae sententiae, cither a jure or ab homine, and the same applies to vindictive penalties. §1. Spiritual and Temporal Penalties According to whether the goods of which a delinquent is deprived are spiritual or temporal (material) goods, we have spir­ itual and temporal penalties in the Church. The majority of ecclesi­ astical penalties at the present day arc spiritual in character, c. g., exclusion from the sacraments and sacramentals, denial of Christian burial, denial of active and passive voice (vote) in ecclesiastical elec­ 678 PENALTIES IN GENERAL tions, privation of office or benefice, clerical suspension from office, jurisdiction, benefice, etc. That the Church has the right to inflict temporal punishment (not to be confused with positive bodily punish­ ment) is evident from her nature as a sovereign society. As such she has the right to all means necessary or useful to attain her end. But since her members are composite creatures, i. e., with soul and body, temporal penalties are sometimes found more effective than spiritual ones. On the other hand, due to separation of Church and State which obtains almost universally today, the Church in practice refrains from employing penalties which might cause civil lawsuits. Among the temporal penalties still retained by the Code are: 1) money fines; 2) confinement to a monastery; 3) the prohibition to stay in a certain locality; 4) the command to remain in a certain locality; 5) infamy. In the first case we have a privation of material possessions, in the second, third and fourth case a privation of liberty, in the fifth case a privation of honor, or reputation. Temporal penalties in practice arc imposed only on clerics and religious, not on the laity. §2. Determinate and Indeterminate Penalties By reason of specification, penalties are determinate and indeterminate. A determinate penalty is one which is so clearly fixed by law or precept that all choice in the matter is excluded, e. g., if the law says: suspendatur, officio deprivatur, ipso facto incur­ rit excommunicationem, etc. An indeterminate penalty is one which the law leaves to the judge or the superior to specify, and this is true whether the law makes it mandatory or optional that a penalty be inflicted, e.g., (in the first supposition of a mandatory punish­ ment) pro gravitate culpae puniatur, and (where the infliction of a penalty is optional) prudenti Ordinarii arbitrio puniatur, (cfr. c. 2217, §1, n. 1). The division of penalties into determinate and indeterminate penalties gives rise to the following principles: 1 ) In the case of determinate penalties established by law the judge as a rule may not increase the penalty (c. 2223, §1). How­ ever, he may temper the penalty if extenuating circumstances so warrant (c. 2223, §2, 3, n. 3). 2) In the case of indeterminate penalties the judge must see that the punishment fits the crime, and he should be neither too lenient nor too severe in choosing the proper penalty. He must, therefore, take into consideration various factors which we have seen may increase or lessen imputability ; the amount of scandal given PENALTIES IN GENERAL 679 and harm done, the gravity of the law which has been violated, the age, sex, and mental state of the delinquent, the time and place of the offense, whether the delinquent has repented, etc. (c. 2218, §D. · 3) In the case of preceptive or mandator}' penalties, whether determinate or indeterminate, a penalty must ordinarily be imposed, but the judge may postpone the execution of his sentence if grave harm would result from its immediate execution, or he may withhold judgment, and abstain from a criminal trial entirely if the delin­ quent has repented and repaired scandal, or it is foreseen that he will be punished sufficiently by the civil authorities, or if there is question of vindictive penalties, the judge may, after having passed sentence, suspend the execution thereof in the case of first offenders, and place the delinquent on a three years* parole as described in c. 2288 (cfr. c. 2223, §3, η. 1, 2). 4) If the law establishes a penalty, whether determinate or indeterminate, as optional, it is left to the prudence and conscience of the judge to inflict it or not (c. 2223, §2). Thus far we have been considering the principles applicable to determinate or indeterminate penalties when these arc ferendae sententiae. If the penalty is latae sententiae (cfr. infra), is is neces­ sarily a determinate and preceptive one, and so the judge can neither increase nor reduce it. But it is generally left to the prudence of the superior to issue, or authorize the issuance of, the declaratory sentence (c. 2223, §4). In practice, trials arc seldom held at the present day, and since many of the foregoing principles apply only when the judge pro­ ceeds by way of a formal trial, they have little value. §3. Penalties latae sententiae and ferendae sententiae Depending on the manner in which they are incurred penalties are latae or ferendae sententiae. A penalty latae sententiae (of a sentence already pronounced) is a determinate penalty which is so attached to the law, or the superior’s precept, that it is incurred immediately upon the commis­ sion of the offense, as if the sentence were already passed (latae sen­ tentiae). A penalty ferendae sententiae (of a sentence to be passed) is one which, whether determinate or indeterminate, need not be observed in either the internal or external forum before the delin­ quent has been found guilty and condemned. Both kinds of penalties may also be attached to the superior’s precept (c. 2217, §1, n. 2). If attached to the precept of the superior, the penalty can be called 680 PENALTIES IN GENERAL latae or ferendae sententiae only in the improper sense, since when the superior actually imposes the penalty upon the delinquent, this is usually done extra-judicially bj way of a decree, not by way of a sentence. Civil legislation has no latae sententiae penalties. Only the Church can reach man's soul, and in this case make her penalties self-executory. That the exercise of such power is reasonable fol­ lows from the fact that the violation of ecclesiastical laws may not prove detrimental to the rights of others, and hence there is no interested party to sue the delinquent in court and punish his offense, as happens where civil laws are transgressed which involve an in­ fringement of the temporal interests of others. As a result many seri­ ous offenses which harm Christian society would remain undetected and unpunished did not the Church attach self-executory penalties to these crimes, e. g., the absolution of one’s accomplice, the reading of prohibited books, etc. (cfr. Vermeersch-Crcusen, Epitome Juris Canonici, III, n. 405). The division of penalties into latae and ferendae sententiae penalties gives rise to the following principles: 1 ) Since latae sententiae penalties are always more odious than ferendae sententiae penalties, in a case of doubt the penalty must be presumed ferendae sententiae (c. 2217, §2). If the lawgiver or the superior uses the expressions: ipso facto or ipso jure (incurritur, in­ currenda) this is evidence that a latae sententiae penalty is intended. 2) A latae sententiae penalty, whether medicinal or vindictive (cfr. infra) is binding on the delinquent in both the internal and external forum immediately upon the commission of the misdeed, provided he is conscious of the penalty. But unless the delinquency is notorious, i. e., not only public, but inexcusable from the point of imputability in the eyes of the public, the delinquent need not observe the penalty in the external forum before he has been found guilt}· and condemned. This applies only when the penalty cannot be observed without defaming oneself prior to official condemnation (c. 2232). Moreover, in the case of latae sententiae penalties the superior is generally free to condemn or withhold condemnation even though he is aware of the offense (c. 2223, §4). That canon states two cases where the offender must be sentenced. 3) The sentence which imposes a ferendae sententiae penalty established by the law is called a condemnatory sentence; that which imposes a penalty latae sententiae established by the law is called a declaratory sentence. Whether cither penalty may be imposed out­ side of a formal trial is disputed (cfr. p. 617). PENALTIES IN GENERAL 681 4) A ferendae sententiae penalty, we said, need not be observed until the delinquent has been judged and found guilty by the court (or the superior) ; and it will be the right of the court, or superior, to determine whether the accused is guilty and to what extent. But in the case of latae sententiae penalties which take effect at once, and must be observed at least in the forum of conscience, it will be left to the individual to decide whether or not he has contracted the penalty. To help him form this judgment canon 2229 lays down certain rules which arc peculiar only to the penalties under consider­ ation. Namely : a) Affected ignorance, i. e., ignorance which has been purposely fostered to escape the consequences of the law, never excuses from any latae sententiae penalties. b) If the law which has been transgressed contains the words: praesumpserit, ausus fuerit, scienter, studiose, temerarie, consulto egerit, or similar expressions which postulate full knowledge and deliberation, any diminution of imputability, whether on the part of the intellect or the will, excuses from latae sententiae penalties. c. If those words are not found: 1) Crass or supine ignorance (that which is present because no effort whatever was made to dispel it) docs not excuse. If not crass or supine but still gravely culpable, such ignorance will excuse from medicinal but not from vindictive l.s. penalties. It is immaterial whether ignorance concerned the law, or only the penalty, or both. 2) Drunkenness, the omission of due care, i. e., carelessness, mental debility, and passion will not excuse if in these cases, not­ withstanding the lessened imputability, the offense is still gravely culpable. 3) Grave fear docs not excuse from 1. s. penalties if the misdeed amounts to a contempt of faith, or of ecclesiastical authority, or if it proves publicly detrimental to souls. Outside of these instances grave fear excuses, even though the offender was guilty of grave sin, and even though the act was intrinsically wrong, i. e., a violation of the divine law (Code Comm., Dec. 30, 1937; Acta XXX, 73, Cfr. also infra p. 715). 4) Children under the age of puberty arc not liable to 1. s. penalties (c. 2230). Bishops arc not subject to l.s. suspension or interdict unless the penal law expressly has them in mind, (c. 2227, §2). Cfr. c.g., c. 2373, n. 1 where a bishop who ordains a non­ subject without dimissorial letters incurs ipso facto suspension for a year. 682 PENALTIES IN GENERAL §4. Penalties a jure and Penalties ab homine By reason of their author penalties are divided into penalties a jure, i. c., penalties established by the law, and penalties ah homine, i. e.. penalties established by the superior which he attaches to his precept. Either may be 1. s. or f. s. But if ferendae sententiae, and even though established by the law, it will be considered a penalty ab homine after the judge pronounces the condemnatory sentence (c. 2217, §l n. 3). The distinction between a jure and ab homine penalties is important from the viewpoint of their pardon. The law grants extensive faculties, as we shall see, to confessors to absolve from a jure penalties. But from ab homine penalties seldom can anyone other than the administrative superior who authorized or imposed the penalty grant pardon. §5. Remedial Penalties, Censures and Vindictive Penalties By reason of the purpose for which they are imposed penalties are divided into remedial penalties, censures and vindictive penalties. A. Remedial Penalties These are not penalties in the strict sense; rather they are remedial measures against the incurring of penalties in the strict sense. They are resorted to by the superior in order to forestall the commission or the repetition of an offense. They find application chiefly in those cases where an offense consists not so much of one transgression of the law but rather of a series of transgressions. We saw how the Code applied them in the case of religious before their dismissal, and in the case of clerical concubinage, non-residence and neglect of pastoral duties. There, as here, the offense consists somewhat in an habitual mode of conduct contrary to the law. Remedial penalties are four in number: 1) admonition; 2) re­ buke; 3) precept; 4) surveillance (c. 2306). An admonition or warning (monitio) is given to one who is in the proximate occasion of committing an offense (c. 2307). The reader need only review the procedure already outlined against the above mentioned offenses to understand this point. Thus, since the law does not state how long an absence will constitute the offense of non-residence, or how many visits are to be interpreted as con­ cubinage, etc. it belongs to the superior when he issues his monitio to determine these matters for the offending person, if such determina­ tion is in order. Less often is the monitio employed against a suspect, although it is allowed (c. 2307). PENALTIES IN GENERAL 683 A precept is a command of the superior which accurately indi­ cates just what his subject must do, or refrain from doing, and carries with it a threat of punishment in the event of disobedience (c. 2310). The precept, therefore, differs from the monition in that it gives a command, whereas the monition simply recalls the penalty established by the law against the impending offense in question. In practise the monition and precept are often administered jointly. This, we saw, happened in the use of these remedial penalties against non-residence and concubinage. Where no procedure is out­ lined in the law, the superior may follow his own judgment whether to give the monition and precept jointly or separately, or whether to omit the monition entirely. Both the monition and the precept may be public or secret. As regards the precept, there must always be evidence at hand of its having been issued. It may be administered before an ecclesiastical notary, or in the presence of two witnesses, or by means of a regis­ tered letter, as we saw in the case of procedure against non-residence, concubinage, and pastoral negligence. A secret precept or command (with threat of punishment) can be proved, e.g., by having the offender sign his name to the document after reading it, and preserv­ ing the document or the signed copy in the archives (cfr. c. 2309). As regards the warning (monitio), if this can be employed or omitted at the discretion of the superior, no proof of it is required. But if the law demands the monition, as it docs prior to the dismissal of religious, and the penal removal of pastors, then the monition must be given in legal form, either publicly or secretly as described in the preceding paragraph (cfr. c. 2309). The warning and the precept may be given repeatedly. Usually, however, the precept is given but once. Still, it may happen that if the warning and precept coincide, the reputed offender may offer, or attempt to offer a defense of his present conduct, e. g., why the pastor absents himself and cannot return within the time specified by the Ordinary. Then, as we saw, the Ordinary may, after recon­ sidering, repeat his warning and precept. How often one can be admonished before being commanded depends on the presence or absence of scandal, and the demands of social justice. A rebuke or reprimand (correptio) is proper in the case of a proved transgression as implied in c. 2308. It substitutes for the precept when proceeding against negligent pastors (c. 2183). In many offenses where the accused pleads guilty it dispenses from the need of a criminal trial, and the application of the strict penalty of 684 PENALTIES IN GENERAL the law (c. 1947), provided the offender is willing to accept an appropriate penance to repair for scandal given, and to satisfy any wrongs to third parties he may have caused (c. 1952, 2313, §2). Surveillance, as a remedial penalty, is resorted to especially if there is question of one who is in danger of relapsing into the same offense (cfr. c. 2311). The Code refers to surveillance also in con­ nection with suspects (c. 1946, §2) ; and with the accused during the course of a criminal trial (c. 1957) ; and with respect to repeated offenders in general (c. 2234). Remedial penalties, we said, are not ecclesiastical penalties in the strict sense of the word. They withdraw no goods, either spir­ itual or temporal. They do not even lessen one’s good reputation. They suppose censurable conduct, and that sufficient evidence is at hand to prove misconduct. Without this proof even remedial penalties are unjustified. With that proof at hand the offender has already harmed his good name, and the remedial penalty does not defame him more than he has already defamed himself. It is the desire of the lawgiver as expressed in c. 2214 that bishops and other superiors have frequent recourse to remedial penalties in the case of misconduct. On the one hand, the superior ought not apply the extreme penalty of the law at the first indications of misconduct, but on the other hand he should not wait until a continued line of misconduct has reached the degree that constitutes it an offense deserving of the established penalty. In that canon bishops and other superiors are reminded that they are the shepherds of their flock, that these are their children and brothers in Christ, that they ought first to reprove, rebuke, entreat in all goodness and patience, since benevolence often effects more than severity, admoni­ tions more than threats, charity more than authority; but if punish­ ment must be given, then let justice be tempered with mercy, and harshness with leniency, lest by enforcing Christian discipline with undue rigor, the offender be embittered into hopeless un repentance. It should be noted that remedial penalties cannot be employed, save where the law either establishes no penalty for a certain line of misconduct, or carries only a penalty ferendae sententiae. They arc no escapes from latae sententiae penalties. B. Medicinal Penalties or Censures A censure is a penalty which deprives a delinquent and contuma­ cious offender of certain spiritual goods until he repents of his mis­ deed and receives absolution (c. 2241, §1). Contumacious and until he repents indicate the nature and purpose of censures as distinct PENALTIES IN GENERAL 685 from vindictive penalties. The main purpose is to reform the delin­ quent. For that reason they are called medicinal (from medicina). Contumacy means that the censure was threatened by law or precept, and in spite of such warning the offender violated the command, and is still unrepentant (c. 2242, §2). The offender is considered to have withdrawn from his con­ tumacy when he truly repents of his misdeed, and at the same time satisfies, or promises to satisfy, for any wrong and injury he may have caused, and to repair any scandal he may have given (c. 2242, §3). No one can be punished with a censure for an offense that does not amount to a mortal sin. And in every case he must have been forewarned, else contumacy is not possible (c. 2242, §1). As soon as the censured offender repents, i. e., desists from his contumacy as just explained, he has a right to be absolved from the censure, but he may still be punished with some penance, or even a mild vindictive penalty, by the superior or confessor who absolves him, if the case seems to require this (c. 2248, §2). Since a censure must be lifted as soon as the delinquent repents, it follows that no censure can be inflicted for a fixed period of time, for it may happen that the offender will repent before that time has elapsed, and he would then have a right to be absolved. So that censures may prove more effective, most of them are reserved, i. e., their absolution is reserved to the lawgiver, or the superior who issued the precept. If they arc established by law but reserved to no one, then any ordinary confessor can absolve though such reservations are rare. The more grievous the delict the more stringent will be the reservation. Some censures arc reserved by law to the Ordinary, others are reserved to the Holy Sec cither simpliciter, or speciali modo, or specialissimo modo. The Ordinary can absolve from censures reserved by the law to himself. To absolve from censures reserved to the Holy See delegated faculties arc neces­ sary, i. e., simple delegated faculties if the censure is reserved simplic­ iter, special faculties if reserved speciali modo, most special faculties if reserved specialissimo modo. In practise, however, as we shall see, the law grants very broad absolving faculties to Ordinaries and confessors today, so that offenders need no longer make a journey to Rome as in times past to be absolved, nor need they even wait for absolving powers to be received by letter from Rome. In spite of all this, however, censures, at least excommunication and interdict, are more severe penalties than arc vindictive penalties: 1 ) because they deprive the offender, while he is under the censure, of more important spiritual goods, e. g., sacramental absolution, for 686 PENALTIES IN GENERAL one thing; and to the supernatural man this is a greater loss than any other deprivation he could suffer, not excluding the loss of one’s clerical rank, i.e., degradation; 2) because before they arc removed the offender must promise to accept a vindictive penalty anyway, e. g., loss of active and passive voice, or a heavy expiatory penance, if these arc deemed necessary to repair for scandal given; 3) because the judge can suspend the infliction of a vindictive penalty established by law in the case of most first offenders (c. 2288). Until the time of the decretalists in the Middle Ages penal theory and legislation in the Church was rather vague. The word censure had a most comprehensive meaning. Any penalty could be called a censure until Innocent III (1195-1216) decreed that hence­ forth the word should be restricted to excommunication, suspension and interdict. This helped somewhat but not much. The decretal ists still had to develop the distinction between medicinal and vindictive penalties. When they succeeded in doing so, they discovered that censures were eminently suited to reform the delinquent and to serve primarily as medicinal measures, and that all other penalties, priva­ tion of office, etc., were better qualified to serve as repressive meas­ ures or vindictive penalties. For centuries previous to this the lifting of all penalties was governed by the same norms so that all penalties, even excommunication, could be inflicted for a definite number of months or years, nor could the offender immediately upon reform ask that he be absolved, as is clear from the prolonged public penances required before absolution could be granted in either the external forum or the forum of conscience, saving in danger of death. Censures are of three kinds: 1) excommunication; 2) interdict; 3) suspension. ( 1 ) Excommunication Excommunication is a censure by which a Christian is excluded from communion with the faithful within the limits determined by the law (c. 2257). It is called anathema when inflicted with all the solemnities of the Roman Pontifical (ibid). Some excommunicates are vitandi (to be avoided), others arc tolerati (tolerated). The latter are deprived only of the exercise of spiritual rights, or of the use of spiritual goods; the former are deprived of the rights and goods themselves, and the faithful should avoid their company in social life, saving their family and close of kin. No one is an excommunicate to be avoided (vitandus) unless this was expressly stated in the papal decree (c. 2258, 2267). Although excommunication is the severest church penalty because it exiles one from the ecclesiastical society completely until PENALTIES IN GENERAL 687 he reforms, yet it cannot deprive one of his baptismal character, nor of divine grace through perfect contrition, nor of the private prayers of the faithful. Concerning the effects of excommunication in particular, these are listed in c. 2259-2267, the following sum­ mary for practical purposes being sufficient: 1) Privation of the sacraments. This is the gravest effect, and in itself it usually suffices to bring about the reform of the delinquent, since until he is absolved from the censure (and he cannot be remitted the penalty until he recedes from his contumacy as stated above) he cannot be absolved from his sins, nor can he receive holy communion or any other sacrament (c. 2260, §1). 2) Privation of Christian burial and all other sacramentals post sententiam, i. c., only after the court has passed the declaratory or condemnatory sentence, but not before, even though the crime be public, provided it be not notorious (c. 2260, §2, 81 ) ; 3) Privation of the right to assist at divine services, although passive attendance may be permitted (c. 2259, 82). 4) Privation of the right to share in the public prayers, suffrages and indulgences of the Church. But the faithful may pray privately for the delinquent, and a priest may privately apply Mass for him (c. 2262) ; 5) Privation of the right to sue in the ecclesiastical court, and to act as sponsor in baptism or confirmation ; but the crime for which excommunication was incurred must be notorious (c. 2263, 2256, n. 2; 765, n. 2; 766, n. 2; 795, n. 2; 1654) ; 6) Clerics who have incurred excommunication are moreover forbidden; a) to celebrate Mass; (c. 2261); 2) to administer the sacraments and sacramentals (c. 2261); 3) to exercise any act of jurisdiction (c. 2264) ; 4) to receive dignities, offices, benefices, pen­ sions and orders (c. 2265). But the faithful are permitted to ask the sacraments and sacramentals from an excommunicated priest who has not been sentenced ; not if he has received court sentence save they be in danger of death (c. 2261, §2, 3). As to acts of juris­ diction, and the acceptance of dignities, benefices, offices and pen­ sions, these acts arc only illicit if placed by an excommunicated cleric ante sententiam excommunicationis ; they are also invalid post sen­ tentiam (c. 2264, 2265), save sacramental absolution given by an excommunicatus to a penitent in danger of death, which is always valid (c. 2261, §3). (2) Interdict There are three kinds of interdicts: 1) personal interdicts; 2) the interdict ab ingressu ecclesiae; 3) local interdicts. A personal interdict is always a censure, the interdict ab ingressu ecclesiae may 688 PENALTIES IN GENERAL be either a censure or a vindictive penalty; local interdicts are always vindictive penalties. Concerning the first two we shall speak at present ; concerning local interdicts, cfr. p. 690. Personal interdict—The personal interdict is merely a limited form of excommunication; it carries some but not all the effects of that censure. One who is personally interdicted is barred within the same limits as an excommunicated person (and hence depending upon whether he acts ante or post sententiam) from: 1 ) assistance at, and participation in, divine services; 2) the reception, consecration and administration of the sacraments and sacramentals; 3) the recep­ tion of offices, benefices, dignities, pensions and orders; 4) ecclesiasti­ cal burial (c. 2275). Interdict ab ingressu ecclesiae—This penalty prohibits burial, and the right to conduct or assist at ecclesiastical functions, in any church (c. 2277). This penalty is employed by the Code only in three cases: against those who violate cemeteries (c. 2329) ; those who give Christian burial to persons who by law are deprived of that right (c. 2339) ; those who perform or permit others to perform divine services in places under local interdict (c. 2338). The personal interdict and the interdict ab ingressu ecclesiae have practically fallen into desuetude at the present day. (3) Suspension Suspension, may be either a censure or a vindictive penalty. The effects arc the same in cither case, save that if a censure is intended it cannot be imposed for life, or for a fixed period, since it must be removed immediately upon the reform of the offender. This in practice is the test to determine whether suspension decreed by law or precept is intended as a censure or a vindictive penalty. In doubt (because more easily removed) it is presumed a censure (c. 2255, §2). Suspension is a censure which debars a cleric from his office, or benefice, or both (c. 2278, §1). Unlike excommunication and interdict it never affects laymen but only clerics. If suspension is established or applied generically, without anyqualifying clause, this means suspension from office and benefice, to­ gether with all the effects which both suspensions are capable of carrying (c. 2278, §2). Suspension ab officio only, does not entail suspension from bene­ fice. It means that the cleric so suspended may not exercise rights of jurisdiction or of orders, e. g., a pastor could not preach, hear confessions, or administer other sacraments (c. 2279, §1). PENALTIES IN GENERAL 689 Suspension a beneficio deprives the cleric of his personal revenues from the benefice, e. g., it deprives a pastor of his salary. It docs not withdraw the right to administer the goods of the benefice unless this is expressly stated, nor the right to exercise his office otherwise (c.2280). Suspension ab officio has divisible effects. Thus, a cleric can be suspended simply a jurisdictione, in which case he could say Mass but not hear confessions. Suspension a divinis, on the other hand, forbids the exercise of the power of orders but not the exercise of the power of jurisdiction. A regular superior, so suspended, could grant confession faculties, but he could not say Mass. A cleric can be suspended simply from hearing confessions, or from preaching, or from assisting at marriages, etc. But the mitigated and limited forms of suspension must appear clearly from the sentence or decree, else suspension in general will be understood (cfr. c. 2279). Any cleric who incurs a 1. s. suspension can, before the declara­ tory sentence, administer the sacraments validly and licitly under the conditions found in c. 2284, if the people ask for the sacraments. But a suspension imposed by decree of the superior does not allow such latitude. C. Vindictive Penalties These aim directly at the punishment of the offense, not the reform of the offender, and so they can he imposed for a definite pe­ riod, e.g., a month, etc (.2286). They cease not by absolution as do censures, but by dispensation and expiation (c. 2289). The vindictive penalties of most frequent use today are: 1 ) local interdict; 2) interdict ab ingressu ecclesiae; 3) penal transfer of a see or parish title; 4) infamy of law; 5) denial of Christian burial; 6) privation of favors, e. g., the privilege of a private oratory, aca­ demic titles, etc.; 7) privation of precedence, of active and passive voice (vote), and of honorary titles; 8) fines; 9) the prohibition to exercise the sacred ministry save in a certain church; 10) suspension of definite duration ; 11 ) penal transfer from a benefice or office to an inferior one; 12) disqualification for all or certain dignities, offices and benefices; 13) privation of office or benefice; 14) confine­ ment or reclusion in a certain place or territory; 15) exile from a certain place or territory; 16) temporary privation of the clerical garb; 17) deposition; 18) perpetual privation of the clerical garh; 19) degradation (cfr. c. 2291,2298). At the present day, in practice, the laity are punished by censures, not by vindictive penalties, if we except denial of Christian burial. Likewise the changed times, including the attitude of civil legislation, 690 PENALTIES IN GENERAL have rendered many of the foregoing penalties obsolete even for clerics, e. g., reclusion, exile, etc. It will suflice to consider in detail certain penalties which are more or less technical in their meaning or application. ( 1 ) Fines Fines, whether imposed by common or particular law, must be diverted by local Ordinaries not to the episcopal benefice or the cathedral chapter, but rather to pious causes, provided the law docs not specify otherwise the purposes to which the fines must be devoted (c. 2297). Thus, e.g., c. 2347, n. 2 specifies that the Ordi­ nary shall compel a cleric who has unlawfully alienated the goods of his benefice to restore twice the amount of the damage in favor of his benefice, supposing a damage has resulted from the alienation. (2) Local Interdict Local interdict is always a vindictive penalty. It directly affects a locality, prohibiting therein all sacred functions, and indirectly deprives all persons of the locality of the right to sacred ministrations (c. 2268). Local interdict may be general, i. e., it may extend to a whole country or diocese, and this only the Holy Sec may decree; or it may be particular, affecting only a parish, an altar, a cemetery, and this the bishop may decree (c. 2269). No matter what the nature of the local interdict, it is always permitted to administer the sacraments and sacramentels to the dying (c. 2270, §1). And on certain major festivals as specified in c. 2270, §2, the interdict is suspended almost entirely. Otherwise, if the interdict is general, the clergy may conduct sacred functions behind closed doors; and only in the cathedral church, or in the only church of the town, may the sacraments be administered to all, and Christian burial be given (c. 2271). This latter provision usually holds also in the case where a particular interdict was placed upon a parish church, i. e., the sacraments may be administered daily with the low Mass said daily, and funerals may be held without pomp (c. 2272, §3). Local interdicts have practically fallen into desuetude. In the Middle Ages they were frequently resorted to (especially general interdicts) in order to break the resistance of the civil ruler toward the ecclesiastical authorities on the theory that the citizens them­ selves (practically all being Catholics) would rise up in just anger and depose their ruler, or make him come to terms with the Church. But those were the ages of faith. PENALTIES IN GENERAL 691 (3) Suspension Suspension, as a censure or vindictive penalty, is employed only against clerics. Except from the point of duration, the effects of suspension as a vindictive penalty are the same as the effects of suspension considered as a censure. (4) Disqualification Disqualification (inhabilitas) is a penalty in virtue of which a cleric is declared unfit for validly receiving an ecclesiastical office, or benefice, or any other clerical position. Only the Holy See can declare by law or decree disqualification in those cases where the common law lays down the requisites for qualification, e. g., a pastor­ ship, the office of ecclesiastical judge, chancellor, etc. But the bishop may decree disqualification for an office not contemplated by common law, e.g., parish trustees (c. 2296, §1). Disqualification does not affect acquired dignities, offices, benefices, etc., otherwise it amounts to privation (c. 2296, §2). The Code contains many instances of crimes which involve disqualification, e. g., every excommunicated cleric is automatically punished also with disqualification (c. 2265, §l,n.2). (5) Infamy Infamy (infamia) in itself means loss of reputation or good name. This may result from the operation of law which brands certain offenses with infamy (infamia juris), or it may result from the fact that serious minded people have lost their good opinion of a church member due to some misdeed on his part (infamia facti). Legal infamy is a penalty in the strict sense of the word, but it is incurred only in the cases expressly mentioned in the common law, e.g., against obstinate heretics (c. 2314, §l,n. 2), against profanators of the Sacred Species (c. 2320), etc. Infamy of law entails irregularity, disqualification for offices, and dignities, and the prohibi­ tion to exercise the sacred ministry (c. 2294, §1). The penalty can be removed only by dispensation of the Holy See (2295). Infamy of fact is an impediment to the reception of orders and the prohibition (not disqualification) to receive ecclesiastical digni­ ties. benefices and offices, and to exercise liritlv the sacred ministry (c. 2294, §2). (6) Privation of office or benefice Privation of office or benefice is the removal of a cleric from his office or benefice in punishment. If a pastor, e. g.. is removed 692 PENALTIES IN GENERAL for administrative reasons, this is not called privation (privatio) but removal (amotio). Privation of office can be decreed by the law or by the superior. But in the case of irremovable offices a formal trial must be held. In the case of removable offices extrajudicial procedure suffice* (c. 192). Privation of an irremovable benefice, cannot be resorted to save in the cases expressly provided for in the law; but a cleric can be deprived of a removable benefice for any punishable offense (c. 2299). A cleric cannot be deprived of a benefice which is his ordination title, unless he has other honest means of a livelihood, and saving where he has been deposed (cfr. infra). In the U. S. clerics arc not ordained on the title of benefice, but generally for the service of the diocese. Nevertheless, the local Ordinary is bound in justice to provide for a repentant cleric who has been deprived of his parish, for although the cleric may have lost his right to the particular benefice, he has not necessarily lost his right to a clerical living. He may be given a chaplaincy or an assistant pastorship, etc. (7) Deposition * This penalty is more severe than privation of office. It includes suspension, privation of all offices and benefices which the cleric may have, and disqualification for any future office or benefice. Moreover, the Ordinary is not bound to provide for the cleric’s maintenance in justice but only in charity (c. 2303). Deposition can be inflicted only by way of a formal trial conducted by a court of five judges (c. 1576). It can be imposed only for crimes specified in the law, namely, in c. 2314, 2320, 2322, 2328, 2350, 2354. 2359, 2379, 2394, 2401. Λ deposed cleric retains the clerical privileges. Privation, or deposition from a particular office is not the general deposition here contemplated. (8) Degradation This is the severest of all vindictive penalties. It adds to deposi­ tion the perpetual privation of the clerical garb, and of clerical privileges. In other words the cleric is reduced to the lay state, as the term implies, i. e., he is laicized. It is seldom resorted to at the present time in the United States, since clerical privileges have lost much of their meaning, due to separation of Church and State. It can be inflicted only in the cases expressly mentioned in common law, i. e., in c. 2314, 2343, 2354, 2368, 2388; likewise if a deposed PENALTIES IN GENERAL 69Î cleric continues to give grave scandal for a year (c. 2305). Λ de­ graded cleric in major orders must observe celibacy (cfr. c. 213, §2). D. Penances Penances, like the so-called remedial penalties, fall short of the nature of true ecclesiastical penalties, i. e., of censures and vindic­ tive penalties (cfr. p. 676, 682). Penances, when imposed in the external forum (canonical as distinguished from sacramental penances) are works of mortification which the delinquent freely accepts from the superior in order either to escape a penalty not yet imposed, or to be pardoned a penalty which he has already incurred (c. 2312). The chief penances employed in the Church at the present day arc: 1 ) The recitation of certain specified prayers ; 2) A pious pilgrimage, or some other work of piety; 3) Fasts not otherwise prescribed by law; 4) The giving of an alms to some pious cause; 5) A spiritual retreat for a number of days, e.g., 10 days, in some pious or religious house (c. 2313). The foregoing is a typical, not an exhaustive, list of canonical penances. It is left to the discretion of the pardoning authority to determine what kind of penance is best suited for a particular case, taking into consideration not alone the gravity of the offense, but especially the amendment of the delinquent, the latter element contributing more to the repair of scandal and the restoration of the disturbed public order in the estimation of the faithful than the heaviest possible penance. ART. Ill Superiors With Punitive Powers Every lawgiver in the Church may enact (establish) penalties for the violation of his own laws, or those of his predecessor. In fact, he may, in view of particular circumstances sanction with penalties of his own the divine law, and non-penal higher ecclesiasti­ cal laws, or aggravate and increase the penalties already attached to the latter (c. 2221). But the Ordinary cannot add a censure of his own to a penal law which already carries a censure reserved to the Holy See 694 PENALTIES IN GENERAL (c. 2247, §1). Neither may he reserve the absolution of the sin in this case to himself (c. 898). But if the censure decreed by common law is nemini reservata, the Ordinary may by way of exception re­ serve the case to himself ratione peccati (c. 898). Whether the Ordi­ nary can reserve to himself by episcopal decree a censure already re­ served to him by the common law is doubtful (cfr. Eccl. Rev., Feb., July, 1931; Mar. 1932). Superiors with purely administrative jurisdiction i. e., who can­ not make laws but only issue precepts, can nevertheless attach penal­ ties to their precepts, excepting the vicar-general without a special mandate (c. 2220). The question is disputed among canonists whether local su­ periors in clerical exempt religions (provided they arc not major superiors as is the local abbot), can attach strictly ecclesiastical penalties to their precepts. On the one hand c. 501, §1 uses general terms when it states that superiors in clerical exempt religions have jurisdiction in respect to their 'subjects, and makes no distinction between major and minor superiors, nor between administrative, judicial or coercive jurisdiction, while c. 2220, §1 also states in general terms that those superiors who can issue precepts may attach penalties thereto. On the other hand, the Code consistently employs the word Ordinary (equivalent to major superior) when describing the judicial or extra judicial procedure in the infliction of penalties. If the constitutions expressly empower local superiors to threaten censures and vindictive penalties, then those superiors without doubt have such power. If the constitutions arc silent, their punitive authority is doubtful, beyond the authority of imposing penances only. Superiors, even major superiors, in lay religions and in clerical non-exempt religions, since they enjoy only dominative or paternal (domestic) authority but not jurisdiction over their subjects, cannot enact penalties in the strict sense of the word, i. e., they cannot deprive their subjects of rights which these have as members or officials in the Church, rights which have been conferred on the subjects by the sovereign authorities in the Church. Hence, they cannot deny them the right to the sacraments or Christian burial, or deprive them of jurisdiction, e. g., withdraw their faculties for hearing confessions, etc. At the most, the religious superior may deprive his subjects of rights which they possess in virtue of mem­ bership in their own religious organization, e. g., some office, or the right of active and passive voice, the right of precedence, etc. These will be penances in the canonical language of the Church, PENALTIES IN GENERAL 695 not ecclesiastical penalties. The reason is that no ecclesiastical juris­ diction is lost through such procedure. They may even deny their subjects the exercise of certain natural rights, e. g., that of liberty, by transferring their subjects in punishment, or subjecting them to confinement. These arc not vindictive penalties in the canonical language of the Church, but penances only ; the superior is empowered to proceed to these lengths not in virtue of a participation in the sovereign power as a regular prelate, but merely in virtue of an im­ plied contract between the religious and the religion made at the time of profession, i. e., in virtue of the vow whereby the subject surrenders his rights within the limits defined by the constitutions. As to the infliction of penalties, every superior who can enact penalties can also inflict them, i. e., apply them in the event of a transgression. However, a judge as such can only inflict or apply penalties established by the lawgiver (c. 2220, §1 ). But in the course of the trial a judge may issue decrees and precepts and enforce the same with his own penalties (c. 1845). ART. IV Subject of Ecclesiastical Penalties The general principle here is that those persons are subject to an ecclesiastical penalty who are bound to the observance of the law or the precept which carries the penalty (c. 2226, §1). Therefore, all the faithful are subject to the penalties decreed by common law unless some persons are expressly exempted. The following are expressly exempt from all or certain penalties of the common law: 1) Cardinals are exempt from all penalties save where the penal law explicitly mentions cardinals (c. 2227); 2) Bishops are exempt from latae sententiae suspensions and interdicts, unless the penal law expressly mentions bishops (c. 2227) ; 3) Children under the age of puberty are exempt from latae sententiae censures (c. 2230) ; 4) Orientals, since they arc generally exempt from the laws of the Latin Church, are likewise exempt from the penalties attached to those laws. Still, in view of the exceptional gravity of the crimes in question, Orientals are not exempt from censures reserved to the Holy See specialissimo modo (H. Off., July 21, 1934; /icta XXVI, 550). 696 PENALTIES IN GENERAL Penalties attached to local laws arc incurred by those only who are subject to the local laws as explained on p. 92. And while a resident contracts the censure attached to the local law of his diocese in the event that the law is transgressed while he is in his home diocese, still the censure ceases as regards its reservation (if it is reserved), and any confessor may, outside of the diocese or territory, absolve the delinquent (c. 2247, §2). Penalties attached to particular precepts continue in force even as to their reservation outside of the territory of the superior (c. 2247, §2). But all penalties, until remitted, supposing they have been incurred, continue to bind out­ side the territory of the superior until removed (c. 2226, §4). A R T. V * Interpretation of Penalties The fundamental rule here is: In poenis benignior est interpre­ tatio facienda (c. 2219, §1 ). That is, of two or more probable opin­ ions in a doubtful penal law, that interpretation must be followed which is the milder one from the delinquent’s viewpoint. Thus, in doubt whether a particular suspension or interdict is a censure or a vindictive penalty, it must be presumed a censure (2255, §2). The reason is that censures are more easily lifted, and it suffices that the delinquent repent in order that he may obtain absolution. Again, in doubt whether a latae sententiae penalty is reserved or not, it must be understood as not reserved (c. 2245, §4). In the same way, it is forbidden to extend a penalty from one case to another or from one person to another even though the cases appear analogous. Thus, penalties decreed against abortion do not apply to craniotomy ; penalties enacted against the violation of papal enclosure do not apply to violations of episcopal enclosure, etc. (cfr. c. 2219, S3). But a penalty may and must be extended to all principals in the same crime, not to the accessories (c. 2231). And so, penalties de­ creed against those who engage in a duel are to be extended to the witnesses and physicians, for these must he considered principals in the light of what was said elsewhere (p. 674). ART. VI The Application of Penalties Penalties whose application and infliction call for a formal criminal trial cannot be applied extrajudicially, but the formalities PENALTIES IN GENERAL 697 of a trial must be observed as already outlined. If the penalty is one which can be indicted extrajudicially, this should be done by means of a written decree, or before two witnesses, and the reasons for the punishment must be indicated, saving eases of suspension ex informata conscientia, where the reason need not be stated. This decree must not be confused with the penal precept. The precept precedes the decree. After one has violated the precept the superior, supposing he has evidence of its violation, should inform the offender that the penalty which he threatened in the precept now applies. This information is the content of the decree. Like the precept, the decree must be given in writing, and signed by the superior and his notary, and delivered to the offender either in per­ son or through registered mail. But the offender can, instead, be informed in the presence of two witnesses that the penalty now applies. In any event a record of the penalty having been imposed must be kept in the archives (c. 2225). Which penalties can be imposed extrajudicially, and which call for a formal criminal trial is a much disputed question as we saw on p. 617. ART. VII Requisites of a Just Penalty For a penalty to be just it is necessary: 1) that the superior or the judge who imposes it should be competent; 2) that, saving the case contemplated by c. 2222, §1, a warning shall have preceded, as explained on p. 669; 3) that the penalty be in proportion to the offense (c. 2218, §1) ; 4) that no excuse disclaiming grave imputability can be offered (c. 2218, §2). In the next article it will be seen what remedy the law offers the aggrieved party against a supposedly unjust penalty. ART. VIII Redress Against Penalties If the penalty was imposed by way of a court sentence the law generally allows appeal with suspensive effect. If the superior’s extrajudicial decree inflicted the penalty, the law generally allows only recourse in devolutivo so that the penalty in the meantime must be observed. But there are exceptions. 698 PENALTIES IN GENERAL Redress against censures, if these have been applied, i.e., in­ flicted, whether by court sentence or the superior’s decree, is allowed only in devolutivo (c. 2243, §1 ). Redress against threatened censures is permitted in suspensive, unless the precept which threatens the censure is one from which, in case no censure had been threatened, the law would allow recourse only in devolutivo. Here redress against the censure threatened by the precept is likewise allowed only in devolutivo (c. 2243, §2). The law must expressly state in reference to the subject matter of the precept that one can have recourse but only in devolutivo, e. g., c. 106, n. 6; 192, §3; 296, §2; 880, $2; 1340, §3; 1395, §2, etc. If the law, or particular canon, states nothing in this regard, and despite the general principle that recourse from extrajudicial precepts is generally allowed only in devolutivo, yet if the precept carried a threat of censure, recourse from the censure (not the pre­ cept) is permitted in suspensive. On the other hand, the contrary principle operates with vindic­ tive penalties, i.e., redress is allowed in suspensivo, both from an applied penalty and from a threatened penalty, unless the law ex­ pressly forbids this in some particular canon e.g., c. 192, §3; 2146, §1, 3, and permits redress only in devolutivo (c. 2287). ART. IX Cessation of Penalties Penalties cease in five ways : 1 ) by death of the offender ; 2) by loss of office of the punishing authority; 3) by expiation; 4) by prescription; 5) by pardon i.e., remission. All penalties naturally cease upon the delinquent’s death, if we except denial of Christian burial (c. 1702). When the superior who imposed a penalty by way of decree extrajudicially loses office, no matter for what cause, his penalties also lose ail effect, unless they were imposed by way of a decree in the form of an authentic document, or orally before two witnesses (c. 24). Otherwise the penalty ceases, since the precept itself will cease in virtue of c. 24. This cessation of the penalty upon the superior’s loss of office is likewise verified if he added the clause to the penalty: ad beneplacitum nostrum, or its equivalent. Even though the penalty continues, the successor in office may remit it, since his powers are equal to those of his predecessor. By the mere PENALTIES IN GENERAL 699 departure from the territory of the superior who inflicted a penalty by way of precept, the penalty does not cease. By expiation those penalties cease which are imposed for a fixed time, e.g., suspension for a month (c. 2289). In that case the penalty automatically ceases after it has been observed a month. Since a censure cannot be imposed for a definite length of time, it cannot cease bv expiation, but only bv absolution upon repentance (c. 2248, §1). In virtue of prescription criminal action cannot be instituted (and the penalty cannot be imposed) if no action was taken by the superior: 1) within one year of the commission of the offense in the case of personal injuries; 2) within five years in the case of offenses against the sixth and seventh commandment; 3) within 10 years in the case of simony and homicide; 4) within three years in the case of all other delinquencies. But crimes reserved to the Holy Office are governed by the laws of procedure peculiar to this depart­ ment of the Holy See (c. 1703). But the most usual way in which penalties cease is through their remission. This act is called dispensation in the case of vindic­ tive penalties, and absolution in case of censures. It should be noted that a vindictive penalty may be remitted after it has been observed for some time and prior to its full expiation. We shall henceforth coniine our attention to the remission of penalties and shall consider: 1) the general principle of pardon; 2) the pardoning powers of Ordinaries in the case of common law penalties; 3) the pardoning powers of confessors in the case of com­ mon law penalties. §1. General Principles Concerning the Remission of Penalties A penalty may be remitted : 1 ) by the superior who enacted the penal law or issued the penal precept; 2) by his competent superiors; 3) by his successor in office; 4) by those whom the superior who enacted the penal law or precept has authorized to grant pardon (c. 2236). But the judge who merely applies a penalty enacted by the superior cannot remit the penalty once he has inflicted it (c. 2236, §3). A penalty may be validly remitted either in the delinquent’s presence or absence, absolutely or conditionally, in the external forum or the internal forum (c. 2239, §1). These principles hold true un­ less modified in some particular case, c. g., pardoning powers granted PENALTIES IN GENERAL 700 to confessors as such can be exercised only in the delinquent’s pres­ ence and in foro sacramentali. Although a penalty may be remitted by word of mouth, yet if it was imposed in writing, it is expedient that its remission be granted in writing (c. 2239, §2). This is for the protection of the delinquent that he have proof of his pardon in the event such proof is later required. In remitting a penalty no special form of words is required; it suffices to inform the offender that he is pardoned. But in the sacramental forum the customary form of sacramental absolution is used. §2. Pardoning Powers of Ordinaries We are concerned with the pardoning powers of Ordinaries in the case of common law penalties. As to their power to remit their own penalties, or those of their predecessors, or censures reserved to themselves by common law, the principles just stated above apply. The pardoning powers of Ordinaries (also regular major superiors) are contained in c. 2237, namely: 1) In public offenses the Ordinary may pardon, saving: a) offenses brought to the court at least through the citation of the accused; b) censures reserved to the Holy See; c) the vindictive penalties of disqualification for offices, dignities, positions in the Church, and privation of active and passive voice, perpetual suspen­ sion, infamy of law, privation of the right of patronage or of any privilege or favor granted by the Holy See (c. 2237, §1) ; 2) In occult cases the Ordinary may remit all latae sententiae penalties, whether vindictive or medicinal, saving censures reserved to the Holy Sec specialissimo or speciali modo, but safeguarding the right of the Ordinary even in these excepted cases to absolve in the capacity of confessor in danger of death (c. 2252) and the otherwise urgent cases contemplated in c. 2254, 2290 (c. 2237, §2). It should be remarked that local Ordinaries receive further pardoning powers for occult cases from the S. Penitentiary in virtue of their quinquennial faculties; while those of the Apostolic Delegate are even more extensive (cfr. p. 732, 737 ff.). §3. Pardoning Powers of Confessors We shall consider: 1) the power of confessors to absolve from censures·, 2) their authority to dispense from vindictive penalties. PENALTIES IN GENERAL 701 A. Faculties Concerning Censures The faculties of confessors vary according to whether the remis­ sion of the penalty is urgent or not. We shall consider the faculties of confessors: 1) in ordinary non-urgent cases; 2) in cases where the penitent is in danger of death; 3) in urgent cases outside of danger of death. (1) Faculties in ordinary Cases (c.2253) By ordinary cases we mean those cases in which the penitent is neither in danger of death, nor is he in the urgent need of absolution to be described below. In ordinary cases every confessor can absolve from non-reserved censures. But from censures reserved to the Ordinary or to the Holy See a simple confessor cannot absolve. We say a simple con­ fessor, meaning a confessor who has not received special absolving faculties for ordinary cases from the Ordinary or the S. Penitentiary, for in this latter supposition he is a privileged confessor. It is a probable opinion, however, that all regular confessors, i. e., priests who belong to a religious Order, have the privilege of absolving even in ordinary cases from censures reserved by the common law to the Ordinary. Concerning the origin of this privilege, cfr. Kelly, The Jurisdiction of the Confessor, p. 58. (2) Faculties in Danger of Death Canon 882 gives to every priest, even though not otherwise approved for hearing confessions, the power to absolve not only from all sins, but also from all censures, no matter in what manner the sins or censures are reserved, any penitent in danger of death. If, however, the censure was reserved to the Holy Sec specialis­ simo modo, or if it was a censure ab homine, the penitent, if he re­ covers, will have the obligation of taking recourse to the Holy See (S. Penitentiary), usually through the confessor, and asking for instructions {mandata). What this means we will explain directly. If the bishop or anyone else, has ordinary delegated powers from the Holy See to absolve, i. c., in ordinary cases from most specially re­ served censures (a rare possibility), the convalescent penitent may recur to these instead, for the mandata {Acta, 1922, p. 663 states that the bishop cannot give the mandata unless he has Code powers or induit powers to absolve from the penalty in non-urgent cases). If the censure was ab homine, the recovered penitent must go to the superior who imposed the censure by way of decree, or who authorized the judge to conduct the criminal trial (c. 2252). 702 PENALTIES IN GENERAL By mandata the Code means instructions or orders given to the penitent with a view to testing the sincerity of his repentance, and restoring the public order by repairing scandal and satisfying for injuries if any were caused. These instructions will vary according to the nature of the offense: he must quit the forbidden society; he must destroy a prohibited book; he must leave his unlawful spouse; he must retract a calumny; he must beg pardon of the cleric whom he assaulted; he must restore the ill-gotten goods; he must return to his religious community from which he apostatized, etc. To grant absolution to anyone unwilling to repair scandal and wrongs in cases such as these, or to avoid the occasion of sin henceforth, would be a mockery to the sacred tribunal. A penitent unwilling to accept these burdens {mandata) lacks sincere contrition for his misdeeds. In danger of death the penitent can be absolved upon the prom­ ise to repair scandal and ask for the mandata in the event that he recovers. He must be reminded that should he fail to keep his promise he will fall automatically into the same censure again. (3) Faculties of Confessors in Urgent Cases Outside of Danger of Death (c. 2254) In urgent cases outside of danger of death, if a censure latae sententiae cannot be observed in the external forum without danger of grave scandal or infamy, or if it is hard for the penitent to remain in the state of grave sin for the length of time necessary for the competent superior to provide for his case, then any confessor can absolve in the sacramental forum from the censure, no matter in what way reserved, but he must enjoin upon the penitent the obliga­ tion, under penalty of relapsing into the same censure, to take recourse within a month, at least by means of a letter and through the confessor (the latter giving the penitent a fictitious name) to the S. Penitentiary, or to the bishop, or to any superior with the required absolving faculties for such censures in ordinary circumstances, and to abide by their mandata. Nothing forbids the penitent, even after he has received absolu­ tion as above described and has taken recourse to the superior for the mandata through the confessor, from approaching another confes­ sor with privileged faculties (e. g., a regular in the case of a censure reserved to the local Ordinary by law), and from repeating his confession, or at least the censured sin, and receiving absolution anew; having received which he may accept the mandata from this confessor without the obligation of abiding by the mandata which PENALTIES IN GENERAL 703 later may come from the superior to whom he originally had recourse. And if in some extraordinary case this recourse is morally impossible, then any confessor may himself give the mandata with the proviso that if the penitent fails within the time determined by the confessor to perform the penance and otherwise make due satis­ faction as the case may demand, the penitent will automatically lapse into the same censure (cfr. c. 2254). The urgent case outside of danger of death, as in the three preceding paragraphs, supposes that the censure cannot be observed without injury to one’s good name, or without causing grave scandal. Thus, a priest under censure may have to say Mass and must be restored to the state of grace. Or the penitent may find it hard (durum) to remain in the state of mortal sin until recourse for absolving faculties is obtained from the competent authorities. Authors claim that a delay of one day suffices, and that the confessor is permitted to dispose the penitent so that the latter will conceive the hardship of remaining in mortal sin for even one day. Certainly, (if the bishop has the faculties), there is no obligation to ask for dele­ gation by phone. If the penitent wishes to come back, e.g., next Satur­ day, and repeat the confession while the confessor in the meantime writes in for the faculties (concealing the penitent’s name), this is permissible, but not necessary where the penitent feels the hardship of such procedure. Better that the penitent be absolved hic et nunc, and told to return later for the mandata, and if even this would be morally impossible, the confessor can give the mandata also hic et nunc, e. g., the confessor is a missionary and will leave the parish soon, or he is otherwise a transient in the parish. Finally, it may be noted that more frequently than not the penitent, while conscious of violat­ ing a law, and convinced of having sinned gravely, was ignorant of the penalty. It would be well for confessors to interrogate their penitents on this point, and if ignorance of the penalty can be proved (and the confessor must believe the penitent), then no censure was contracted. But ignorance of the penalty for a second offender is not to be presumed. B. Faculties Concerning Vindictive Penalties In occult and urgent cases, if by observing a latae sententiae vindictive penalty which he incurred (e.g. suspension), the delin­ quent would betray himself with resultant scandal and loss of reputa­ tion, any confessor can in the sacramental forum suspend the obliga­ tion of observing the penalty. But he must enjoin upon the penitent the obligation to take recourse at least within a month by letter and 706 OFFENSES AND PENALTIES LN PARTICULAR The distinction between a heretic, apostate from the faith, and a schismatic is defined in c. 1325, §2: a heretic being a baptized person who rejects some revealed truths, an apostate one who rejects all revealed truths, a schismatic one who refuses submission to the Roman Pontiff or communion with the Church. That a Catholic fails to practise his religion does not necessarily imply apostacy, heresy or schism. The subject under discussion finds practical application in the case of converts to the faith. Though they may have been bona fide non-Catholics, and baptized and brought up in the non-Catholic sect through ignorance, still until ignorance is proved, canon law pre­ sumes culpability in the external forum (c. 2200, §2). We say, if they were baptized in a non-Catholic sect, and this supposition gives rise to the following procedure: 1) a certainly non-baptized convert is baptized absolutely, no abjuration is required, nor sacramental absolution from sin or censure; 2) a certainly baptized non-Catholic convert is thus received: abjuration, i.e., profession of faith, absolu­ tion from the censure in the external forum, sacramental confession ; 3) a doubtfully baptized convert is thus admitted: abjuration of error (profession of faith), conditional baptism, conditional absolu­ tion from the censure in the external forum, sacramental confession with conditional absolution from sins (cfr. H. Off., July 20, 1859, l'ont es, IV, η. 953, or the Priest’s New Ritual, p. 48, where also is found the formula of profession). When a grave and reasonable cause is present, c. 755, §2 permits the Ordinaries to allow the solemn form of infant baptism in the baptism of adults, and some Ordinaries by special induit may permit the extremely short form of baptism as found in the Priest’s New Ritual, p. 61 (John Murphy Co., Balti­ more) ; otherwise the long form, or ceremony, for adult baptisms must be employed as contained in the Rituale Romanum. ART. II Prohibited Books (c. 2318) Editors of books written by apostates, heretics or schismatics, which professedly teach apostacy, heresy or schism, incur ipso facto excommunication reserved to the Holy Sec speciali modo. Those persons who knowingly, and without due permission, defend, read, or retain in their possession the above books, or any book which has been forbidden by Apostolic Letters nominatim, like­ wise incur the same censure as above. OFFENSES AND PENALTIES IN PARTICULAR 707 Authors and editors, who, without due permission, publish Books of Sacred Scripture, or annotations or commentaries thereon, incur ipso facto excommunication reserved to no one. The above arc the only books forbidden by common law under penalty of censure. Hence, not every book on the Index is forbidden under censure, since some of them do not teach heresy, schism or apostacy professedly, nor have they been banned nominatim by Apos­ tolic Letters. However, books which arc on the Index, and even though not forbidden under censure, arc banned under penalty of grave sin, unless due permission to read them is previously obtained. Competent to give such permission is the Ordinary of the reader (c. 1402). The books which we have seen are forbidden under censure (and they need not necessarily be found in the Index), must be books of about 250 octavo pages in the estimation of VermeerschCreusen (o. c., Ill, n. 517). It docs not suffice if they are merely leaflets or booklets advocating heresy, etc. Nor would a few pages of a real book advocating heresy, etc., suffice if the rest of the book treated of other, non-condemned, subjects, for these pages would be only an incidental treatment, the book could not be said to teach heresy, etc., ex professo. The same applies to an occasional article in a magazine or newspaper. Not all books are on the Index as a result of condemnation nominatim by Papal Letters. Most of them have been inserted at command of the Holv Office, or some other Congregation, and in that case they cannot be said to have been condemned by Papal Letters. At any rate the Letters must specify the author’s name, the book’s title, and the fact that the work is forbidden under penalty of censure. In the 1930 edition of the Index, books which are forbid­ den nominatim by the R. Pontiff arc prefixed by a small dagger. ART. HI Attempted Marriage Those who attempt marriage before a non-Catholic minister incur ipso facto excommunication reserved to the local Ordinary (c. 2319, §1. n. 1). While it is certain that a mixed marriage before a non-Catholic minister is included in this canon, it is disputed whether the censure is incurred by two Catholics who marry before a non-Catholic minister. The reason for the doubt lies in the fact that the present c. 2319 refers us to c. 1063, §1, by adding that those 708 OFFENSES AND PENALTIES IN PARTICULAR who so marry in contravention of c. 1063 incur the excommunica­ tion. But c. 1063 contemplates only mixed marriages. At any rate, the discussion has no practical importance in the United States be­ cause the III Plen. Counc. of Baltimore (n. 127) inflicts ipso facto excommunication upon all Catholics who contract marriage before a non-Catholic minister, and uses generic terms, so that the penalty can hardly be restricted to those who contract a mixed marriage. Before requesting faculties to absolve from the censure, the confessor will inquire whether the marriage can be validated in the eyes of the Church. Sometimes this is not possible because one or both parties are divorced from their former spouse who is still aliye, and the impediment of the bond would forbid the present marriage to be validated, an impediment which being of divine law cannot be dispensed with by the Church. If there is no possibility of validating the marriage contracted before the non-Catholic minister, the parties must separate, and if the penitent refuses to do so, there is no reason to apply for special faculties to dispense from the censure, since sacramental absolution from sin is impossible, the determination to continue in the sin of adultery precluding a sincere purpose of amendment. The Code does not punish with censure a marriage contracted by a Catholic before a civil official. However, the III Plen. Counc. of Baltimore (n. 124) has established an ipso facto excommunication in this case reserved to the local Ordinary, namely, if the Catholic marries before a civil officer after having obtained a civil divorce. If no civil divorce preceded (it may be a first marriage), attempted civil marriage is not punished by the Council, but in some dioceses it is a reserved sin in virtue of diocesan statutes. Marriage attempted by clerics in major orders, or by religious with solemn vows, is punished by ipso facto excommunication re­ served to the Holy Sec simpliciter (c. 2388, §1). Both the cleric, or the religious, and the other partner to the marriage incur this censure. Likewise, clerics automatically lose all offices which they had in the Church, and if they do not repent within the time fixed in the Ordinary’s warning, they are to be degraded (c. 2388, §1). This applies equally to secular and religious clerics, and besides all religious with solemn vows who attempt marriage are ipso facto dis­ missed from their Order (c. 646, §l,n. 3). On Apr. 18, 1936 the S. Penitentiary (Acta XXVIII, 242) declared that a priest who attempted marriage and is now repentant, but for very exceptional reasons finds it extremely difficult to quit common habitation with his married partner (e. g., because of diffi­ culties of the civil law), may refer his case to the S. Penitentiary for OFFENSES AND PENALTIES IN PARTICULAR 709 absolution in order to enable him (and possibly his consort if a Cath­ olic) to receive sacramental absolution and go to communion in the manner of the laity, but on condition that he promise to observe perfect chastity forever thereafter. Some writers having misinter­ preted this declaration in the sense that any confessor could now absolve such priest in urgent cases in virtue of c. 2254, the S. Peni­ tentiary on May 4, 1937 {Acta XXIX, 2S3) issued a further declaration to the effect that a priest who has attempted marriage can be absolved by no one save the S. Penitentiary itself, excepting the case of danger of death. The reason here is obvious, for although in urgent cases outside of danger of death a confessor at times may absolve from all censures, he must do this on condition that the penitent is truly repentant and is willing to avoid the occasion of sin, in addition to the obligation of recourse to the superior. But here, the confessor would absolve without imposing the duty of separation, a privilege which is extraordinary, and which is not contemplated by c. 2254, but which only the Holy Sec could grant. Religious with simple perpetual vows who attempt marriage incur ipso facto excommunication reserved to their proper Ordinaries (2388, §2). They arc ipso facto dismissed from the religion (c. 646, 81, n. 3). If they arc clerics in major orders, the same penalties as above described apply (c. 2388, §1). Religious with simple temporary vows who attempt marriage incur no censure in virtue of common law. But they arc ipso facto dismissed from the religion (c. 646, 81, n. 3). If they are clerics in major orders, the penalties as above apply. Clerics in minor orders who attempt marriage are ipso facto degraded, i. e., reduced to the lay state (c. 132, §2). ART. IV Non-Catholic Education of Offspring (c. 2319) Parents, or those who take the place of the parents, e. g., guardians, who knowingly have their children educated in a non­ Catholic religion incur ipso facto excommunication reserved to the local Ordinary. The same censure is incurred by those who contract marriage with the understanding that all or some of the children will be raised as non-Catholics. The sending of the children to the public schools in this country is not equivalent to educating the children in a non-Catholic religion, 710 OFFENSES AND PENALTIES IN PARTICULAR because these schools arc supposed to be non-sectarian. However, c. 1374 forbids Catholic parents to send their children to non­ sectarian schools save with the permission of the local Ordinary. In some dioceses local law may make it an offense punishable with ipso facto excommunication to send children to a public school with­ out previous approval of the bishop, or his delegate, c. g., the pastor. Concerning this whole question, especially the duties of a confessor in the case of parents who send their children to public schools with­ out ecclesiastical permission, cfr. Sabetti, Compendium Theologiae Moralis, p. 256, sq. XXVIII ed. ART. V Profanation of the Sacred Species (c. 2320) He who casts away (abjecerit) the Consecrated Species, e.g., by throwing them to the ground, trampling on them, etc., or who carries them off or retains them for an evil purpose, incurs ipso facto excommunication reserved to the Holy See specialissimo modo; he is ipso facto under infamy of law, and if a cleric he must be deposed. In the Middle Ages the delinquent in the present case, after his guilt was proven by the ecclesiastical court, and he remained obstinate, was handed over to the lay court who inflicted capital punishment. ART. VI Violation of the Privilege of the Forum He who dares to cite before a lay judge a cardinal, papal legate or (in matters pertaining to their office) some major official of the Roman Curia, or one’s own Ordinary, contracts ipso facto excom­ munication reserved speciali modo to the Holy Sec; if he cites any other bishop, even a titular bishop, or an abbot or prelate nullius, or the supreme moderator of some religion of papal law, he incurs excommunication latae sententiae reserved to the Holy See simplic­ iter; if any other person who enjoys the privilege of the forum (including religious and novices) is cited, the delinquent, if a cleric, incurs ipso facto suspension from office ; if a layman, he shall be punished by his Ordinary with appropriate penalties (c. 2341). The above penalties are not incurred if in harmony with c. 120 OFFENSES AND PENALTIES IN PARTICULAR 711 permission to sue the cleric or religious or novice was obtained by the competent ecclesiastical authority. There, too, we saw that in the United States lay plaintiffs arc not forbidden to sue clerics in the secular courts. However, if the object of the suit is to obstruct the exercise of ecclesiastical jurisdiction, c. g., to obtain an injunction against the bishop’s decree of removal from an office, laymen as well as clerics incur excom­ munication ipso facto reserved to the Holy See speciali modo (c. 2334, η. 2). Clerical plaintiffs in this case, moreover, are to be suspended, and deprived of their benefices and offices, whereas religious plaintiffs are to be suspended from office, deprived of active and passive voice, and punished with other penalties possibly provided by the constitu­ tions (c. 2336). ART. VII Forbidden Societies Those who join the Freemasons, or similar societies which plot against the Church and the lawful civil authorities, contract ipso facto excommunication reserved simpliciter to the Holy See (c. 2335). If the delinquent is a cleric or religious, he must be reported to the Hob Office (c. 2336, §2). In addition to the masonic sects which arc expressly mentioned in the above canon, and membership in which was first forbidden under penalty of excommunication by Clement XII, Apr. 28, 1738, (Fontes I, n. 299), we have the Fenians of Ireland and England con­ demned under censure by the H. Off. Jan. 20, 1870, (Fontes IV, n. 1012). Similar in scope to the above, because they plot against the State or the Church would be Communistic and Anarchistic organ­ izations, but not necessarily all Socialistic Societies, for the latter often merely seek to change the form of government, not to abolish all government. The conditions under which Freemasons and the adherents of societies akin to them may be absolved arc stated in the quinquennial faculties of our local Ordinaries (cfr. p. 733). Some societies, while not plotting against lawful authority, nevertheless constitute a menace to the faith and morals of its mem­ bers, and of these some have been condemned by name but not under censure, namely: 1) The Independent Order of Good Templars (H. Off., Augi 9, 1893; Tontes IV, 1167; 2-3-4); The Odd Fel­ lows, Sons of Temperance and Knights of Pythias ( H. Off., Aug. 20, 1894, Fontes IV, n. 1171). Passive membership in these four so­ cieties may be retained under conditions stated by the H. Off. on 712 OFFENSES AND PENALTIES IN PARTICULAR Jan. 18, 1896, namely: that the penitent joined the society in good faith without knowing that it was forbidden; that he is giving no scandal by remaining in the society ; that grave temporal harm would result from renouncing membership, e.g., insurance loss; that there is no danger of perversion to the penitent. Whether these conditions arc actually verified in some individual case is not for the confessor to judge, but for the Apostolic Delegate, or the Archbishop (H. Off. June 27, 1913). Lest scandal be given to the faithful, and contempt for ecclesi­ astical authority would result, where a society (other than those expressly forbidden by the Holy See as in the preceding paragraph) should be forbidden by a public decree of the bishop in one diocese, and tolerated in other dioceses, the III Plcn. Counc. of Baltimore n. 255, ruled that no society should be condemned, even apart from censure, save by a board of the archbishops of the entire country. Nevertheless, the confessor has the right and duty, relying solely on his private judgment, to deny sacramental absolution to his penitent who belongs to a society which the confessor believes to be a source of danger to the penitent’s faith or morals, and this whether the society has been expressly forbidden or not by the ecclesiastical authorities (III Plen. Counc. Balt., n. 247). On this entire ques­ tion the reader is referred to Sabetti, o.c., p. 1028 sq. XXVIII ed. ART. VIII Violation of Papal Enclosure They incur ipso facto excommunication reserved simpliciter to the Holy See who : 1) Violate the enclosure of nuns by entering the enclosure limits without permission of the competent ecclesiastical superior, or who permit such persons to enter the enclosure; 2) Violate the enclosure of regulars by unlawfully entering the monastery enclosure or permitting entrance to outsiders; 3) Leave the enclosure without due permission in the case of nuns (c. 2342). We have seen what is meant by papal enclosure. Certain per­ sons arc privileged by law to enter the enclosure. Others may enter with episcopal permission in the case of a monastery of nuns. But aside from privileges and permissions, the enclosure is violated by persons of either sex who enter the monastery of nuns; by women only who enter the monastery of regular men. To have an enclosure OFFENSES AND PENALTIES IN PARTICULAR 713 the limits must have been fixed by the competent superiors, and these limits must be indicated to the public, otherwise enclosure does not exist and cannot be violated. We saw what circumstances would justify a nun Icaving«thc monastery without permission. Regular men do not incur the censure of common law who leave the religious house without permission, i. e., they do not thereby violate the enclosure, but they may contract censure by reason of apostacy or flight, as we shall sec. ART. IX Assault on Clerics (c. 2343) According to the dignity of the person assaulted, the Code distinguishes four categories of penalties for the violation of the privilege of the canon : I ) One who lays violent hands on the person of the Roman Pontiff incurs ipso jacto excommunication reserved to the Holy Sec specialissimo modo; he is ipso facto vitandus; he is ipso jure under infamy; if he is a cleric he must be degraded. 2) One who lays violent hands on a cardinal or papal legate in­ curs ipso facto excommunication reserved to the Holy See speciali modo; he contracts automatically infamy of law; and he is to be de­ prived of all benefices, dignities, offices, pensions and positions which he may have in the Church. 3) Those who lay violent hands on a patriarch, archbishop or bishop, whether a residential or titular archbishop or bishop, incur ipso jure excommunication reserved to the Holy See speciali modo. 4) Those who lay violent hands on any other cleric, or upon a religious (or novice), incur ipso facto excommunication reserved to their proper Ordinary, who. if the case warrants it, may add addi­ tional punishment according to his prudent judgment. The Code at this place employs the expression “violent hands.” but this includes any act by which the privilege of the canon is violated. These various acts we have considered already on p. 170. Whether passion, ignorance, etc. excuse from the censure in any particular case is left to the confessor in the sacramental forum ; to the prelate in the external forum. Moreover, in the external forum malice is presumed until the contrary be proved (cfr. c. 2200, $2). Attempted assault is not punished with censure, but it may be punished with other penalties according to the discretion of the superior (c. 2235). "14 OFFENSES AND PENALTIES IN PARTICULAR ART. X Religious Apostates and Fugitives (c. 2385-2386) A religious who apostatizes from his religion incurs ipso facto excommunication reserved to his major superior in clerical exempt religions, but to the local Ordinary where he is staying if he belongs to any other kind of religion. Likewise he loses all the privileges of his religion (c. g., exemption) while he is away, and when he returns he is forever deprived of the right of active and passive voice (the right to vote to an office or to be voted for, or appointed to an office). The constitutions may add other penalties. If the apostacy is quali­ fied by the additional crimes specified in c. 646, the religious is ipso facto dismissed from his religion (c. 2385). A religious fugitive ipso facto incurs privation of any office he may have, and if he is a cleric in major orders, he incurs ipso facto suspension reserved to his major superior, in addition n other penalties which the constitutions may establish or authorize (c. 2386). The canons arc clear on the above penalties and nothing more need be added by way of explanation save to refer the reader to the definition of an apostate and fugitive as given on p. 382. Only one doubt remains, namely, whether the local Ordinary or the major superior absolves from the suspension incurred by a religious fugitive who is a member of a clerical non-exempt religion. If the major superior is empowered to grant the absolution, it is the only case where the Code grants such superiors jurisdiction in the strict sense. Only the Code Commission can definitely settle the question. In practise the religious can be absolved by cither the major superior or the local Ordinary, and this in virtue of c. 209. ART. XI Abortion (c. 2350) Those who procure abortion, the mother herself not excluded, incur a latae sententiae excommunication reserved to the Ordinary, provided abortion was not merely attempted but really effected. Clerics, moreover, who cooperate in this crime are to be deposed. Abortion is the ejection of an immature fetus from the womb. OFFENSES AND PENALTIES IN PARTICULAR 715 Whether the fetus is animate or inanimate is immaterial in theory, while in practise the precise moment of animation cannot be deter­ mined anyway. The fetus is considered immature, i. c., incapable of living its own life outside of the womb before the seventh month subsequent to conception. After the seventh month the ejection of the fetus is called acceleration, and whether lawful or unlawful in view of the particular circumstances of the case, it is not to be classed as abortion. Neither is craniotomy abortion, nor is the extrac­ tion of an extra-uterine fetus abortion; in both cases where direct death is intended wc have homicide and the crime is accordingly punished with the penalties decreed against homicide as in c. 2354, although no latae sententiae penalty is inflicted. Finally, the ejec­ tion of the semen within a very short time following copulation, e. g., within 24 hours, is not abortion since there is yet no fetus in all probability, there being no conception. But in this case wc speak of onanism, and although gravely sinful, the offense carries no special penalty in the Code, the abuse being one best remedied by denial of sacramental absolution, or the constructive counsel of a prudent confessor. The penalty is incurred by all who cooperate in the procuring of an abortion as implied in c. 2209. Some pre-Code com­ mentators on the Constitution Aftostolicae Sedis were wont to exempt the mother from the excommunication on the theory that grave fear or some other extenuating circumstance was always pres­ ent to exclude malice on her part. The Code expressly includes the mother although grave fear or any other cause diminishing imputa­ bility on her part will excuse as in the case of any other latae senten­ tiae censure (cfr. p. 681). She is not exempted, however, on a general presumption as hitherto. ART. XII Unlawful Alienations (c. 2347) We have already seen what constitutes an unlawful alienation of ecclesiastical goods, cfr. p. 570. In addition to the annulling effect given to the contract by c. 534 and c. 1530, the Code in c. 2347 punishes with excommunica­ tion latae sententiae reserved to no one the unlawful alienation of goods whose value exceeds 30,000 lire, or for which an Apostolic induit is required. That this refers to the contracting of debts in 716 OFFENSES AND PENALTIES IN PARTICULAR the case of religious is evident front the fact that c. 2347 expressly refers us to c. 534, §1. Whether it includes the contracting of debts by a non-religious administrator, or by a religious administrator in the capacity of a cleric, e. g., a pastor, is not certain ; and since wc are now in penal matters where a strict interpretation is required, the extension is not justified, and alienation here means only those acts by which ownership of ecclesiastical goods is actually transferred, not merely pledged (Chelodi, Jus Poenale, n. 79; Trent, Italy, 1920). For unlawful alienations of goods which do not exceed the value of 30,000 lire, c. 2347 establishes a variety of penalties, but these being ferendae sententiae, we refer the reader to the Code under the canon cited. ART. XIII Abandonment of the Clerical Garb Clerics who in violation of c. 136 (cfr. p. 178) do not wear the clerical garb, should be gravely warned to do so. If within a month after being warned a cleric in minor orders fails to resume the garb, he is ipso facto reduced to the lay state; a cleric in major orders after a month’s lapse ipso facto loses all offices which he may have, and this in virtue of tacit resignation, and in addition he should be suspended. If after being warned anew he leads a life notoriously foreign to the clerical state, he shall after three months from this second warning, being found unreformed, be deposed (c. 2379). ART. XIV Concubinage, Non-Residence, Pastoral Negligence Clerics, religious as well as secular, who are found guilty of concubinage (even of suspected concubinage, cfr. p. 178), must be admonished, and if they disregard the warning they may be suspended a divinis, and deprived of the income of their benefice, office and dignity (c-2359, §1). The same clerics may be deprived of the benefice and office itself after a further warning in accordance with c. 2176-2181 (cfr. p. 662). Clerics who by reason of their office or benefice are held to the law of residence and fail to observe residence shall, for the time of their unlawful absence, be deprived of the income from the office OFFENSES AND PENALTIES IN PARTICULAR 717 or benefice pro rata absentiae (c. 2381). If after due warnings they remain contumacious, they may be deprived of the office and benefice itself in accordance with c. 2168-2175 (cfr. p. 662). Pastors negligent in the pastoral duties described on p. 662 may be deprived of their parish in punishment by the extrajudicial pro­ cedure there outlined. Pastors negligent in writing up the palish books shall be punished by the Ordinary in proportion to the gravity of their guilt (c. 2382, 2383). ART. XV Violation of the Sacramental Seal (c. 2369) A confessor who dares to violate directly the seal of confession incurs excommunication latae sententiae reserved to the Holy See specialissimo modo; if he rashly violates the sacramental seal indirect­ ly, he contracts the penalties which the law decrees in the case of solicitation, which we shall consider in Art. XVII. Direct violation consists in revealing both the sin which one discovers in confession and the name of the penitent, as where a priest says: Titius hoc fecit, etc. Indirect violation is present when from the confessor’s speech or conduct there is grave danger that the penitent’s sins be suspected, or he be embarrassed. As Sabetti, o.c., n. 817 rightly remarks, direct violations of the sacramental seal are extremely rare, thanks to divine providence. But indirect violations arc not so rare. The same author (ibid.) enumerates vari­ ous ways in which the sacramental seal can be indirectly broken. C. 2369 uses the word praesumpserit ; hence, full knowledge and deliberation are presupposed, and any of the extenuating circum­ stances mentioned on p. 681 will excuse the confessor from the censure. It should be added that the Code inflicts no censure upon a person who, other than the confessor, happens to know of the penitent’s sins, e. g., by overhearing the confession, and reveals the same, although such revelation would be gravely sinful in itself. ART. XVI Absolutio Complicis (c. 2367) A priest who absolves, or feigns to absolve, his accomplice in a sin of impurity ipso facto incurs excommunication reserved to the 718 OFFENSES AND PENALTIES IN PARTICULAR Holy See specialiftimo modo. 'I'he censure is incurred even if he «absolves the penitent when the latter is in danger of death if another priest, even though not approved for hearing confessions, can hear the penitent’s confession without any grave danger of loss of reputation to the accomplice priest, or danger of scandal, except where the penitent refuses to confess to any priest other than the accomplice (c. 2367, §1). 'I'he same excommunication is incurred by the priest who absolves, or pretends to absolve, the accomplice who docs not con­ fess the sin of impurity, from which absolution was not granted, for the reason that the penitent was induced by the confessor direct­ ly or indirectly not to mention the sin (c. 2367, $2). On Nov. 16, 1934 the II. Off. (Acta XXVI, 634) declared that the indirect inducing contemplated here is verified when the confessor persuades the accomplice that their relations are not gravely sinful, and the matter need not be mentioned in the confessional. What further is meant by the absolutio complicis in peccato turpi can be learned from any manual of moral theology, cfr. Sabetti, o. c., n. 785. ART. XVII Crime of Solicitation (c. 2368) Solicitation in connection with sacramental confession is not to be confused with absolving one’s penitent in a sin of impurity of which we just spoke. 'I'he delinquency under present consideration consists in the attempt by a confessor to induce his penitent into a grave sin against chastity, this attempt being made in the act of sacramental confession, or on the occasion or pretext of confession. To safeguard the sanctity of the confessional against such pos­ sible abuses, the Church punishes most severely any confessor who has been found guilty of the crime of solicitation. No latae sententiae penalty is incurred by him it is true, but very severe vindictive penalties arc established in c. 2368: the priest upon being found guilty is to be suspended from the celebration of Mass, and from hearing confessions; he must be deprived of all benefices, dignities, offices, and active and passive voice, and is to be declared disqualified in regard to the same, and in exceptionally enormous crimes of this nature he is to be degraded. The more effectively to prevent abuses of this kind, canon law imposes upon the solicited penitent the obligation of denouncing OFFENSES AND PENALTIES IN PARTICULAR 719 the confessor to the bishop or the Holy Office, and this within one month. And any confessor to whom the solicited penitent may subse­ quently reveal the case has the duty of instructing the penitent of the grave obligation to make the denunciation (c. 904). /Xftcr being instructed concerning this obligation, the penitent who fails to de­ nounce the priest, incurs excommunication latae sententiae which, although reserved to no one, cannot be absolved until the penitent discharges the obligation mentioned, or seriously promises to do so (c. 2368). While the common good requires that the crime of solicitation Ik repressed, still the good name of the priest should not be allowed to suffer by reason of the loquacity, or the hatred of a revengeful penitent. Therefore, c. 894 and c. 2363 punishes the crimen falsi or the false accusation of an innocent priest of solicitation with the reservation of the sin of falsehood itself, and with ipso facto ex­ communication reserved to the Holy Sec speciali modo. In practise the penitent who has been solicited is to be instructed by the confessor, who directly or incidentally recognizes the case as one of solicitation, to report the matter to the bishop. But the confessor must be cautious in giving this advice, and he must make sure that the penitent is speaking the truth. The denunciation is made in the presence of the bishop or his delegate and an ecclesiasti­ cal notary. If one finds this task insupportable one may substi­ tute a written denunciation, but adding one’s true name. If not even this much can be imposed upon the penitent, the con­ fessor in some exceptional case will in charity assume the obliga­ tion for the penitent and denounce the crime personally to the bishop, or by means of a letter, concealing the penitent’s name. How cau­ tiously the bishop or his delegate must proceed is evident from the three instructions of the Holy Office (Feb. 20, 1866; Fontes IV’, n. 990; July 20, 1890; ibid n. 1123; Aug. 6, 1897, ibid n. 1190), in which detailed rules of procedure are laid down, and question­ naires are found for interrogating the penitent or penitents. Because the accused priest has little opportunity to defend himself due to the sacramental seal, and because as a rule there is question of only one witness testifying against him, it is not the custom for the Holy Office to take measures against the accused priest until after a second or third denunciation, for then, especially if these denunciations are made by different parties, and from extrajudicial inquiry it is learned that they are not manifest enemies of the accused, the ecclesiastical authorities are sufficiently justified to act without danger to the confessor’s reputation. LATAE SENTENTIAE PENALTIES 720 A List of the Latae Sententiae Excommunications, Suspensions and Interdicts Contained in the Code 1. Excommunications a. Reserved to the Holy See specialissimo modo incurred by those who 1. Cast away, carry off, or retain in their possession the Sacred Species (c. 2320). 2. Lay violent hands on the person of the Roman Pontiff (c. 2343, §1). 3. Absolve, or feign to absolve, an accomplice (c. 2367). 4. Directly violate the sacramental seal (c. 2369, §1). 5. Violate certain laws in connection with papal elections (c. 2330). b. Reserved to the Holy See speciali modo incurred by those who 1. Are guilty of apostacy from the Christian faith, heresy or schism (c. 2314, §1, n. 1 ). 2. Edit, defend, read or keep books written by apostates, her­ etics or schismatics, and which professedly advocate arostacy, heresy, or schism ; also books which have been condemned nominatim by Papal Letters (c. 2318, §1). 3. Pretend to celebrate Mass or hear sacramental confessions if they are not priests (c. 2322, §1). 4. Appeal to an ecumenical council (c. 2332). 5. Appeal to the lay authorities to obstrret the promulgation or execution of Papal Letters (c. 2333). 6. Pass laws or issue commands which oppose the liberty and rights of the Church, or impede the exercise of ecclesiastical jurisdic­ tion (c. 2334). 7. Summon before the secular court a cardinal, papal legate major official of the Roman Curia, or one’s own Ordinary (c. 2341 ). 8. Lay violent hands on the person of a cardinal, legate, patriarch, archbishop or hishop (c. 2343, §2, 3). 9. Usurp or retain temporal goods and rights of the Holy See (c. 2345). 10. Fabricate or falsify Apostolic documents (c.2360). 11. Falsely accuse an innocent priest of solicitation (c. 2363). c. Reserved to the Holy See simpliciter incurred by those who 1. Traffic in indulgences (c. 2327). LATAE SENTENTIAE PENALTIES 721 2. Join the Freemasons or similar societies (c. 2335). 3. Unlawfully try to absolve from an excommunication re­ served specialissimo or speciali modo (c. 2338, §1). 4. Offer aid to an excommunicatus vitandus’, or if clerics, com­ municate with him in divinis, or allow him to exercise divine offices (c. 2338, §2). 5. Cite a bishop, abbot or prelate nullius before a lav judge (c. 2341). 6. Violate the enclosure of nuns (c. 2342, n. 1). 7. Violate the enclosure of regular men (c. 2342, n. 2). 8. Leave their enclosure in the case of nuns (c. 2342, n. 3). 9. Usurp ecclesiastical goods (c. 2346). 10. Engage in or promote duels (c. 2351). 11. Attempt marriage in the case of clerics in major orders and religious with solemn vows, also their consorts (c. 2388, §1). 12. Commit simony in relation to ecclesiastical offices, benefices and dignities (c. 2392). 13. Unlawfully tamper with the documents of the episcopal archives, sede vacante (c. 2405). d. Reserved to the Ordinary incurred by those who 1. Contract marriage before a non-Catholic minister; educate their children outside of the faith; offer their children to non­ Catholic ministers for baptism; agree when marrying to raise the children outside of the faith (c. 2319). 2. Fabricate, sell, distribute, expose false relics (c. 2326). 3. Lay violent hands on a cleric, religious or novice in cases not included above in a-2; b-8 (c. 2343, §4). 4. Procure abortion (c. 2350, §1). 5. Apostatize from their religious organization (c. 2385). 6. Attempt, or contract marriage with simple perpetual re­ ligious vows (c. 2388). e. Reserved to no one incurred by those who 1. Edit works of Sacred Scripture without permission, including the author (c. 2318). 2. Grant ecclesiastical burial to an infidel, schismatic, apostate, from the faith, or to a heretic, excommunicated or interdicted person (c. 2339). 722 LATAE SENTENTIAE PENALTIES 3. .Alienate ecclesiastical goods beyond the value of 30,000 lire without Apostolic induit (c. 2347. n. 3). 4. rurcc anotacr to embrace the clerical or religious state (c. 2352). 5. Omit to denounce a confessor guilty of solicitation (c. 2368). 2. Suspensions a. Reserved to the Holy See incurred by those who 1. Consecrate a bishop without Apostolic mandate (c. 2370). 2. Commit simony in the reception and administration of the sacraments (c. 2371). 3. Knowingly receive ordination from an excommunicated, suspended, interdicted cleric, or from an apostate from the faith, a heretic or schismatic (c. 2372). 4. Ordain without dimissorials, testimonial letters, or a canonical title (c. 2387). 5. Are declared to have made an invalid religious profession through fraud (c. 2387). 6. Admit to office an elected, presented or nominated candidate without inspecting his letters of confirmation (c. 2394, n. 3). b. Reserved to the Ordinary incurred by those who 1. Cite a cleric, religious or novice before a lay judge (c. 2341 ). 2. Take flight (fugitivus) from their religion after being in major orders (c. 2386). c. Reserved to no one incurred by those who 1. Hear confessions, being priests, or absolve from reserved cases, without jurisdiction (c. 2366). 2. Permit themselves to be ordained without dimissorials. before the canonical age, or without observing the interstices (c. 2374). \ 3. Resign an office or benefice into the hands of a layman (c. 2400). 4. Fail to receive the blessing in the case of an abbot or prelate nullius (c. 2402). 5. Unlawfully grant dimissorials in the case of the vicar­ capitular or diocesan administrator (c. 2409). 6. Send their religious subjects to a strange bishop for ordina­ tion (c. 2410). LATAE SENTENTIAE PENALTIES 723 3. Interdicts a. Reserved to the Holy See speciali modo incurred bv those who 1. As moral persons appeal to an ecumenical council (c. 2332). b. Reserved to the Ordinary incurred by those who 1. Conduct divine services in interdicted places, or command others to do this, or admit excommunicated, interdicted or suspended clerics to active participation in divine services (c. 2338, §3). 2. Are the cause of a local interdict, or of an interdict indicted upon a moral person (c. 2338, §4). Excommunication Decreed by the Council of Baltimore, Reserved to the Local Ordinary and Incurred by Those Who 1. Contract marriage before a civil official after obtaining a civil divorce. Episcopal Reservations or Censures 1. All such as may be contained in the statutes of the diocese. QUINQUENNIAL FACULTIES OF THE BISHOPS AND OTHER LOCAL ORDINARIES OF THE UNITED STATES (Formula IV) Note: The following faculties replace those which obtained in pre-Code days. The present faculties were granted soon after the promulgation of the Code to local Ordinaries of many countries including those of the U. S., Ordinaries of other countries receiving other formula faculties. The quinquennial faculties, as their name indicates, arc valid for five years, and are usually renewed without modification at the expiration of that time. The present faculties are valid from Jan. 1, 1944 to Dec. 31, 1949. The faculties from the Holy Office as herein presented arc the modified faculties which went into effect July 1, 1946, and will remain in force until Dec. 31, 1949, at least as far as local Ordinaries of the United States are concerned. At times the Holy Sec grants particular faculties to the bishops of certain countries in addition to the general category represented Ί2\ QUINQUENNIAL FACULTIES OF BISHOPS by Formula IV. Such additional faculties have been given to our bishops from time to time, and they are found listed herein at the end of the general formula faculties. Faculties From the Holy Office (Cfr. The Jurist, 1946, Oct. 534-539 for the Latin text of these revised faculties). 1. The faculty to grant for not longer than three years permis­ sion to read and keep prohibited books and periodicals, but under custody lest they fall into the hands of others, excepting works which professedly defend heresy or schism, or which attempt to overthrow the very fundamentals of religion, and excepting works which of set purpose treat of obscene matters. The Ordinary can give this permission to any of the faithful under his jurisdiction, but with discretion and for a just and reasonable cause as stated in c. 1402, $2, that is to say, to those only who have real need to read the books or periodicals either to attack and challenge them, or to carry on their legitimate business, or to pursue a justified course of studies. Official note: The above faculties are given to bishops to be exercised by them personally, in other words, they are not to delegate them to others. And they have a grave obligation in conscience to sec to it that the above prescribed conditions arc verified. 2. To dispense for just and grave causes his own subjects, even though these are outside of his territory at the time, and non­ subjects while they are in his territory, from the impediment of mixed religion, and, if the case so warrants, from disparity of cult atl cautelam as often as a prudent doubt arises concerning the baptism of the non-Catholic; if before the marriage the non-Catholic cannot be induced to embrace the true religion, or the Catholic to refrain from the marriage, and if the conditions demanded by the Church as contained in the rulings of c. 1061, §2 are as a rule first verified, and the Ordinary himself is morally certain that they will be fulfilled, namely: on the part of the non-Catholic the promise to remove from the Catholic spouse the danger of perversion, and a promise on the part of both spouses that all children of both sexes shall positively he baptized and educated in the Catholic religion; and the Catholic is to be reminded of the obligation he, or she, is under to strive prudently to have the other party embrace the Catholic faith. Moreover, the nupturients shall be reminded that they may not, either before or after their Catholic marriage, approach also a non­ Catholic minister to give or renew marriage consent as stated in QUINQUENNIAL FACULTIES OF BISHOPS 725 c. 1063, §1, and this under penalty of excommunication latae senten­ tiae reserved to the Ordinary to be incurred by the Catholic as stated in c. 2319, §1, n. 1 ; while for the rest those rules which c. 1063, §2 contains for the guidance of the pastor must be strictly observed. But if the parties are now living in concubinage, opportune measures shall be employed to remove any scandal that may be present, and the Catholic shall be properly disposed to receive the grace of God, being first absolved from the excommunication he contracted if perhaps he married before a non-Catholic minister, and he shall be given an appropriate and salutary penance; and if from their illicit union children have already been born, the parties shall be warned of their serious obligation arising from divine law to see, as far as possible, to their. Catholic education and (if the case is such) their conversion and baptism, and an explicit promise to fulfill this obligation shall be required of the Catholic. [Our note: The last lines in the preceding paragraph modify the former faculties and liberalize them somewhat. Notice that if a mixed marriage is to be validated under the present arrangement the promises extend only to the children to be born, not to the children already bom, or rather the promise to educate the offspring already born and raise them as Catholics is required only of the Catholic, although the non-Catholic shall be reminded that divine law expects his cooperation also. Striving for the conversion and baptism of the offspring by the Catholic supposes the parties to have been married invalidly, or to be living in concubinage for some time, long enough to have had by this time grown children, i.e., at least seven or more years old so that instructions would he in place before they received baptism and other sacraments.] 3. To dispense for just and grave reasons in favor of his own subjects even though these are outside of his territory at the time, and in favor of non-subjects while these are in his territory, from the impediment of disparity of cult, excepting the case of marriage with a Mohammedan, if this can be done without contumely to the Creator, and the non-baptized party cannot be induced to embrace the true religion, nor the Catholic to refrain from the marriage, provided the conditions demanded by the Church as laid down in c. 1061, §2 arc first as a rule verified, and the Ordinary himself is morally certain that they will be fulfilled, namely: on the part of the non-baptised person a promise to remove from the Catholic spouse the danger of perversion, and a promise from both parties that all children of both sexes shall positively be baptized and educated in the Catholic religion, and the Catholic shall be informed of his or 726 QUINQUENNIAL FACULTIES OF BISHOPS her obligation to strive prudently for the conversion to the faith of the other. They shall also be warned that they may not approach a minis­ ter of a false cult before or after their Catholic marriage either to give or renew marriage consent, as stated in c. 1063, §1 ; as for the rest, the rules found in c. 1063, §2 for the guidance of the pastor in this situation shall be strictly observed. As regards the legitimation of the children, c. 1051 must be kept in mind. If the parties are now living in concubinage, opportune meas­ ures shall be employed to remove scandal if any is present, and the Catholic shall be properly disposed to receive the grace of God ; but if children have already been born of their illicit union, the warning shall be given and the promise exacted as stated above under n. 2. For the rest, as concerns the banns, the asking of marriage consent, and the sacred rites, whether there is question of mixed religion or disparity of cult, let the rules contained in c. 1026, 1102, 1109 be observed; and after a marriage of this kind has been cele­ brated, whether in his own or in another Ordinary’s territory, let the local Ordinary be vigilant that the spouses faithfully carry out the promises which they made. [Our Note—According to the present modified faculties only the Catholic must make an explicit promise with reference to chil­ dren already born, also in case a dispensation is granted for disparity of cult. Observe also that our bishops may now dispense and permit a Catholic to marry a Jew, the limitation being restricted henceforth only to the case of a marriage between a Catholic and a Moham­ medan.] 4. To validate by means of the sanatio in radice marriages at­ tempted before a civil official or a non-Catholic minister by his own subjects even though these arc outside of his territory when he dis­ penses, and by non-subjccts if these are now in his territory, if the marriages were contracted with the impediment of mixed religion or disparity of cult, provided consent perseveres in both parties, and it cannot be renewed in canonical form, cither because the non­ Catholic cannot be told of the invalidity of the marriage without danger of grave harm or inconvenience to the Catholic spouse, or because the non-Catholic cannot be induced in any way to renew marriage consent before the Church, or to give the promises required by c. 1061, §2; provided: a) that there is moral certainty that the non-Catholic will not prevent the baptism and Catholic education of any children that may be born from now on; QUINQUENNIAL FACULTIES OF BISHOPS 727 b) that the Catholic explicitly promises that, as far as he (or she) can, he will strive to have all the children to be born baptized and educated as Catholics, and (if the case is such) he will strive for the conversion, baptism and Catholic rearing of the children already born; c) that the parties did not, prior to their attempted marriage, whether by a private or public agreement, bind themselves to raise the offspring as non-Catholics; d) that neither party is now insane; 5) that at least the Catholic is aware of the sanation and consents to it ; 6) that no other canonical diriment impediment is present in the case for which (he Ordinary cannot grant a dispensation or sanation. Moreover, the bishop shall seriously advise the Catholic of the very grave offense he has been guilty of, and shall impose upon him a salutary penance, and, if the case is such, he shall absolve him from the excommunication of c. 2319, §1, informing him at the same time that by reason of the favor of the sanation he received his marriage has become valid, legitimate, and indissoluble by divine law, and that the offspring possibly already born or to be born is to be considered legitimate; and he shall remind him of the obligation he is under to strive prudently for the conversion to the faith of his non-Catholic spouse. And since there must be proof in the external forum of the validity of the marriage and the legitimacy of the children, the bishop shall direct that the document conveying the sanation and the docu­ ment attesting to its execution he carefully filed in the diocesan curia, and he shall see to it, unless prudence dictates otherwise, that a note concerning the sanation of the marriage be entered into the baptismal register of the parish where the Catholic was baptized, together with annotation of day and year. It is the mind of the Holy Office that the bishop use this faculty of gran tin (j sanations personally, i. e., he shall subdelegate the faculty to no one else. To be noted: Whenever he grants a dispensation or sanation as above the bishop or Ordinary shall make explicit mention of Apostolic delegation (c. 1057). At the end of each year the Ordinary shall report to the Holy Office the number and kinds of dispensations he granted in virtue of the present induit. 728 QUINQUENNIAL FACULTIES OF BISHOPS Faculties From the Congr. of the Sacraments 1. To dispense for a just and reasonable cause from the impediments of minor degree as in c. 1042, and from the impedi­ ments of c. 1058, but in the latter case only to permit marriage. 2. To dispense from the impediments of major degree as below, if a grave and urgent cause is present, and there would be danger in delay, and the marriage cannot be put off until a dispensation is obtained from the Holy See, namely: a) From consanguinity in the second or third degree of the collateral line touching the first, provided no scandal or amazement results therefrom ; b) From consanguinity in the second degree of the collateral line; c) From affinity in the first degree of the collateral line, whether simple or touching the second degree; d) From public propriety in the first degree, provided there is no danger that one spouse is the child of the other. 3. To dispense on the occasion of pastoral visitations, or sacred missions, but not otherwise, from all marriage impediments men­ tioned above in favor of those who are living in concubinage. 4. To validate by means of the sanatio in radice marriages invalid by reason of some impediment of ecclesiastical law, whether of major or minor degree, excepting the impediment arising from the priesthood, or from affinity in the direct line resulting from a consummated marriage, provided it is seriously inconvenient to have the party ignorant of the nullity of the marriage to renew consent, as long as the original consent perseveres, and there is no danger of divorce, and the party conscious of the impediment is informed of the sanation and its effects, and the sanation itself is duly recorded in the baptismal and marriage registers. Official notes'.—1) The Ordinary can make use of the above faculties either personally or through other competent persons desig­ nated by himself, both in the case of marriages to be contracted and to he validated, and this in favor of his own subjects no matter where they are at the time, and in favor of non-subjccts actually in his territory, but making mention in each case of the Apostolic delegation as c. 1057 rules. 2) When using these faculties let him keep in mind the prescriptions of c. 1048 and 1054. 3) At the end of each year the Ordinary shall report to this Congregation through the S. Consistorial Congregation the number and kinds of dispensations which he granted in virtue of the present induit. QUINQUENNIAL FACULTIES OF BISHOPS 729 Faculties From the Congr. of the Council 1. To reduce for five years on account of diminished revenues perpetual Mass obligations in such numbers that the ordinary stipend which prevails in the diocese can be realized from each Mass, as often as there is no one who can be legally held, or effectively urged, to increase the capital for the founded Masses, and consequently the income, but with the understanding that each celebrant notify the diocesan curia each year concerning the fulfillment of the Mass obligations thus reduced. 2. To transfer Mass obligations for five years within the limits of his diocese to days, churches or altars other than those designated in the charter of foundation, provided a real necessity exists for doing this, and divine service is not curtailed thereby, nor the people put to an inconvenience to hear Mass, and excepting from this faculty legacies which can he easily fulfilled in the designated places by an increase in the stipend ; and care shall be taken that each year the diocesan curia be informed by the different celebrants of the transferred Mass obligations which thev fulfilled. 3. To transfer for five years any excess of Mass obligations, even permitting them to be satisfied outside of the diocese, but taking care that as many intentions are satisfied in the diocese as is possible; and the canons of the Code shall be strictly observed as regards the precautions to be taken whenever Mass stipends are transferred or sent away. 4. To permit that the private recitation of Matins and Lauds be anticipated from one o’clock in the afternoon whenever a reason­ able cause is present. 5. To permit the alienation of ecclesiastical goods up to the value of $10,000 for (the Ordinaries of) the United States and Canada, and to the sum of 15,000 pesos in South America and other countries (i.e., for those Ordinaries—our parenthetes}, provided there is real need of the alienation, and time docs not permit recourse to the Holy See, but notifying the Holy See immediately after the transacted alienations. Faculties From the Congr. of Religious 1. To dispense at the request of the superiors from the impediment of illegitimacy to permit entrance into a religion if the dispensation is required bv the constitutions of the institute, provided there is no question of sacrilegious offspring, and with the understanding that the individual so dispensed is not thereby quali­ fied for election to major offices in the sense of c. 504 : 730 QUINQUENNIAL FACULTIES OF BISHOPS 2. To permit that three Masses be celebrated in accordance with the rubrics at midnight of Christmas in churches of religious not included under c. 821, §2, the permission to allow those attend­ ing Mass to receive communion; but all three Masses must be celebrated by the same priest. 3. To dispense from over-age to allow a person to receive the religious habit if the constitutions of the institution make such dispensation necessary, provided the General or Provincial Superior­ ess with her council first give consent in each case, and provided the postulant is not over 40 years old, and possesses all other necessary qualifications. 4. To dispense, even in the case of exempt religious, from lack of age required for the priesthood, namely a) To dispense candidates who lack not more than 12 months of the canonical age required for the priesthood, but the ordinands must have received dimissorials from their superior, and must possess all other qualifications required by the sacred canons, and particularly must they have completed their theology course as prescribed in c. 976, §2. b) To dispense candidates who lack 16 months of the canonical age, provided the candidates have obtained, or need no other Apos­ tolic dispensation, and observing the other conditions mentioned above under (a). 5. To dispense nuns and Sisters from the lack of dowry, whollj or in part, provided the Institute does not unduly suffer financially thereby, and that the postulant possesses such qualifications that create a firm hope that she will be useful to the Institute. 6. To reappoint a confessor to a fourth or fifth term of three years of office provided the consent of the greater part of the religious women, expressed in a meeting and by secret ballot, including religious who otherwise have no right to any vote, be given to such reappointment, but making adequate provision for those, if any, who dissent and who, if anv, desire a different confessor. 7. To permit that Mass be celebrated on Holy Thursday, and that communion be received even to satisfy the Easter duty, by all who habitually live with the community. 8. To permit nuns to enter their church so that they can clean and adorn it better than others could, provided that all outsiders first leave the church, including the confessor himself and all hired help who do not live within the enclosure, on condition that the doors of the church be locked and the keys given to the Mother QUINQUENNIAL FACULTIES OF BISHOPS 731 Superior, that the nuns shall always work at least by twos in the church, that the door connecting church and enclosure be locked with a double key, one to be kept by the Superioress and the other by a nun designated by the Ordinary, and finally that the said door shall not be opened save on designated occasions and with the precautions described. 9. To permit nuns to leave the cloister to undergo an urgently needed operation, even though there is no immediate danger of death, or of very serious illness, the permission to be valid only for the length of time absolutely necessary, and due precautions must be imposed. Faculties From the Congr. of Sacred Rites 1. To appoint priests, if possible vested with an ecclesiastical dignity, to consecrate both fixed and portable altars, observing the rubrics and formula of the Roman Pontifical, and using also the approved short formula for portable altars. 2. To appoint priests, vested if possible with an ecclesiastical dignity, to reconsecrate fixed and portable altars that have lost their consecration, using the short formula B for the cases spoken of in c. 1200, §2, while for the cases mentioned in c. 1200, §1, and for which the Code itself grants faculties, formula A is to be used. 3. To appoint priests, vested if possible with an ecclesiastical dignity, to consecrate chalices and patens, observing the rites and formula of the Roman Pontifical. 4. To allow priests, who have the faculty to binate, to omit the Passion in one Mass on days when the Mass calls for the Passion, saying only the last part: Altera autem die, etc., having said beforehand: Munda cor me urn, etc. Sequentia Sancti Euangelii secundum {Matthaeum ). 5. To bless marriages outside of Mass, or to recite prayers over the spouses, using approved formulas; and the Ordinary may sub­ delegate this faculty. 6. To bless and impose the five scapulars with the single formula, and he may subdclcgatc this faculty. 7. To bless and impose the five scapulars with the single formula without the need of recourse to the competent religious Ordinaries or Congregations, and without the need of inscribing the names of the enrolled, whenever there is a great gathering of people during spiritual retreats or missions: and this faculty he may subdelegate. 732 QUINQUENNIAL FACULTIES OF BISHOPS S. To bless the sacred oils on Holy Thursday with only the assistance of so many priests and ministers as it is possible to have for the bishop celebrant in view of local conditions. . 9. To permit the use of incense in high Masses celebrated without deacon and subdeacon, and this on first and second class doubles, on Sundays, and whenever Mass is sung before the Blessed Sacrament exposed. 10. To permit the use of the Memoriale Rituum of Benedict XIII for Holy Week functions, and for the blessing of ashes, candles and palms in churches and public or semi-public chapels (which are not parochial or quasi-parochial), if there is sufficient assurance that the sacred mysteries will suffer nothing in point of decorum and reverence. 11. To bless objects of piety with the sign of the cross, observ­ ing the prescribed rubrics. But on the occasion of the pastoral visitation when several seek blessings for many and various objects, it is permitted to use simply the short formula when making the sign of the cross, namely: (Benedicat haec omnia Deus, Pater, et Bilius et Spiritus Sanctus. Amen.). 12. To say one low requiem Mass each week in his own chapel but not on a day of first or second class double, a Sunday, holyday of obligation even though suppressed, a day during a priv­ ileged octave, a ferial day of Lent, an ember day, Rogation Monday, or a vigil or ferial on which a Sunday office is being anticipated or carried over, and observing the rubrics in all other respects. Faculties From the Sacred Penitentiary 1. To absolve any penitent whomsoever (excepting heretics who of set purpose spread heresy among the faithful) from all cen­ sures and penalties incurred by reason of heretical commitments, whether made secretly or openly before others; but the penitent may not be absolved before he denounces those whom he knows to be professedly teaching heresy, as well as any ecclesiastics or religious whom he may have had as accomplices; and if for just reasons this denunciation cannot be made before absolution is given, he must seriously promise to make the denunciation as soon as he can and in the best possible way; and the penitent must first secretly abjure his heresy in the presence of the authority who absolves him. He shall be given a heavy, salutary penance in proportion to the gravity of his offenses, and shall be enjoined to frequent the sacraments and to make retractions before those persons to whom he manifested his heresies, and to repair the scandal he caused. QUINQUENNIAL FACULTIES OF BISHOPS 733 2. To absolve from censures and other ecclesiastical penalties those who have defended, or knowingly and without due permission read or retained books of apostates, heretics and schismatics that advocate apostacy, heresy or schism, or other books condemned by Apostolic Letters, but imposing a salutary and befitting penance, and the firm obligation of destroying, or handing over to the Ordi­ nary or confessor, the said books as far as possible. 3. To absolve from their censures those who have impeded dircctlv or indirectly the exercise of ecclesiastical jurisdiction, wheth­ er of the internal or external forum, and who to effect this had recourse to the lay authorities. 4. To absolve from the censures and penalties decreed against duelling, but only for cases not yet brought to the attention of the authorities in the external forum, enjoining a salutary penance and imposing all other obligations usually demanded. 5. To absolve from censures and ecclesiastical penalties those who have joined a masonic sect or similar society which machinates against the Church or civil authority, but under condition that they leave the sect or society completely, and abjure it; that they denounce as prescribed by c. 2336, §2 all ecclesiastical and religious persons whom they know to be members; that they consign all books, manuscripts and insignia pertaining to the sect or society, if they have any, to the absolving authority, to be forwarded cautiously to the Holy Office as soon as possible, or at least, if just and grave reasons so dictate, that they destroy the said objects, at the same time enjoining on the penitent a salutary and grave penance propor­ tionate to the gravity of his offense, together with frequent confes­ sion, and the duty of repairing any scandal he gave. 6. To absolve from censures and ecclesiastical penalties those who without due permission entered the enclosure of regular men or women, or who admitted them, or authorized their admission, provided this was not done for a criminal purpose even though the intended crime may have been frustrated, also provided the violation of the cloister has not become a matter of the external forum, and remembering to enjoin a salutary' penance in proportion to the guilt of the offender. 7. To dispense a person who contracted marriage while bound by the vow of perfect and perpetual chastity made privately after his completed 18th year of age, and this only to the end that he may ask for the debitum, informing the penitent that he is held to the vow outside the licit use of marriage, and will continue to be so bound should he outlive his consort. 734 QUINQUENNIAL FACULTIES OF BISHOPS 8. To dispense from the occult impediment of crime, provided there was no conjugicidc, and only to validate a marriage already contracted, informing the supposed spouse of the obligation of renew­ ing consent secretly, and enjoining a grave, long and salutary penance. To dispense as above, and within the same limitations, in the case of a marriage to be contracted, (not validated), and enjoining a long and salutary penance. 9. To dispense from the irregularity arising from voluntary homicide, or abortion, as in c. 985, n. 4, but only to permit that the penitent may exercise orders already received without danger of infamy or scandal, and enjoining upon him the obligation of recurring to the S. Penitentiary within a month, at least by means of a letter written by himself or his confessor, the latter concealing the penitent’s name, and informing the S. Penitentiary of all the circumstances of the case, especially how often he committed the crime, and abiding by the instructions the S. Penitentiary will give him. 10. To grant under the usual conditions: a. A Plenary Indulgence to Be Gained by all the Faithful IFho·. a) Assist at Pontifical Mass celebrated by the Ordinary on a day designated by the Ordinary once a year for each designated place; b) Devoutly visit a church or chapel, public or semi-public, during the hours when the Ordinary is making his pastoral visita­ tion there; c) Visit the church where the diocesan synod is being held and at the time when it is held ; d) Receive communion on a general communion day in the cathedral, or any other church designated by the Ordinary; e) Hear at least half the sermons during the time of a mission conducted in the diocese by permission of the Ordinary. b. A Partial Indulgence of 200 Days to Be Gained by Those Devoutly Attending Any Sermon Referred to Under (c) Above. Official remarks—The Ordinary, in virtue of special authority of the Holy See given to him, may use the faculties just listed, of absolving from censures and of dispensing for the forum of' con­ science even outside of confession, in favor of his own subjects even though these are outside of his diocese at the time, and in favor of non-subjects who are actually in his diocese; and habitual sub­ delegation of the same faculties he may, if he wishes, grant also QUINQUENNIAL FACULTIES OF BISHOPS 735 to the canon penitentiary and to the vicars forane, but to these only, to be exercised by them within the diocese and in the sacramental forum only; to other priests he may subdelegate these faculties only in each case as they recur to him in the name of their penitents, and explain their case, unless for special reasons he prefers to communi­ cate these faculties to certain confessors expressly deputed by himself for a length of time he deems best. The Ordinary cannot subdelegate the above faculties of impart­ ing indulgences, but must exercise all such faculties in person. ADDITIONAL FACULTIES GRANTED TO THE LOCAL ORDINARIES OF THE UNITED STATES 1. An induit first granted to our bishops by the S. C. Propa­ ganda, and since renewed periodically by the S. C. Council, author­ izes our bishops to permit the use of flesh meat to workingmen and their families at one meal on all days of fast and abstinence, except­ ing all Fridays of the years, Ash Wednesday, the forenoon of Holy Saturday and the Vigil of Christmas. 2. On June 2, 1920 the S. C. Council granted our bishops an induit, which is renewed periodically, in virtue of which they may transfer the obligation of abstinence during Lent from Saturday to Wednesday, excepting Ember Saturday. 3. A decree of the S. C. Consistory on Oct. 15, 1931 author­ ized our bishops to dispense from the law of fast and abstinence whenever a civil holiday falls on a day of fast and abstinence, of fast alone or of abstinence alone. The faculty is renewed every five years. It was renewed April, 1947 for five years. But the Ordinaries are to exhort the faithful who use the dispensation to make some offering, preferably in favor of the poor. 4. The S. C. Sacraments on March 25, 1946 authorized our bishops for three years to dispense from the Eucharistic fast per modum potus et medicinae the sick who arc confined in hospitals to enable them to communicate daily as long as their illness lasts, pro­ vided this causes no scandal or wonderment on the part of the faith­ ful, and provided sick priests do not use this faulty to say Mass with­ out fasting (cfr. The Jurist, 1946, July, 423). 5. On May 27, 1946 the S. C. Sacraments authorized our 736 QUINQUENNIAL FACULTIES OF BISHOPS bishops for a period of three years to dispense from the Eucharistic fast all persons who habitually work past midnight. Persons so dispensed may communicate without fasting on all Sundays and holvdays of obligation, and on any other one day of their choice each week, provided they abstain from solid food for four hours prior to communion, and from liquids from one hour before com­ munion, and from alcoholic beverages from midnight. But scandal or wonderment on the part of the faithful must be safeguarded against, and the bishops should not grant blanket or general dis­ pensations. They may, finally, permit Sisters who work after mid­ night in the service of the sick, and within the above limitations, to communicate without fasting whenever they have spent the pre­ ceding night in serving the sick (cfr. The Jurist, 1946, Oct. 538539). 6. In two communications dated May 17, 1946 and July 26. 1946 the Apostolic Delegate informed our bishops that the Roman Pontiff through the S. C. Sacraments had authorized them for the duration of the faculties in n. 4 and 5 above: a) To dispense from the Eucharistic fast within the limits above under (5) sick priests confined to the rectory, a religious house, or a private home; b) To extend the dispensation in favor of Sisters who serve the sick as above in (5) to religious brothers whenever they spend the preceding night in ministering to the sick. The dispensation is to be granted within the same limits as above in (5) explained (cfr. HPR. 1947, May 663). FACULTIES OF THE APOSTOLIC DELEGATE Note: The following faculties our Apostolic Delegate to the United States has in common with Nuntios, Internuntios and other Apostolic Delegates in the Church. They were granted shortly after the promulgation of the Code, and unlike the faculties of local Ordinaries, they are indefinite in their duration and do not require periodic renewal. They are broader than the faculties of the local Ordinaries. In additional to the following formula faculties the representatives of the Roman Pontiff are often vested with other delegated powers to deal with cases and conditions peculiar FACULTIES OF THE APOSTOLIC DELEGATE 737 to the territory of their jurisdiction. We have added at the end of the present formula faculties such other faculties enjoyed by the Apostolic Delegate to the United States. I. Faculties of a General Nature 1. ’To visit personally, or through an ecclesiastic outstanding for his virtue, prudence and learning, places, persons and things mentioned in c. 344, 512, and 1382, but onlv in individual cases, not by way of habitual visitation, provided the visitation seems neces­ sary and urgent, that the Ordinary is impeded or has neglected to make visitation, and that time does not suffice to have recourse to the Holy See. 2. To draw up personally, or through another cleric vested with an ecclesiastical dignity, all acts or so-called processes for those who have been appointed to a bishopric or archbishopric, in accord­ ance with the regulations established for the particular country in question. 3. To confer on worthy clerics the benefices mentioned in c. 1435, §1, n. 1,3, observing the rules laid down, or to be laid down by the Apostolic Datary in this matter. 4. To absolve both in the forum of conscience and in the external forum, according to the nature of the case, from all censures reserved by law to the Roman Pontiff cither simpliciter or speciali modo, but enjoining on the penitent the obligations usually enjoined for the particular case in question. 5. To dispense men already ordained from all irregularities, whether ex delicto or ex defectu, to the end that they may celebrate Mass and obtain or retain ecclesiastical benefices, provided no scandal results therefrom, nor any impairment of divine services, and always excepting cases coming under c. 985, n. 4, and if there is question of absolving from heresy or schism, the penitent must first abjure his errors in the presence of the one who absolves him. 6. To permit for reasons of poverty that those who failed to apply Mass intentions, whether manual or founded, now satisfy such past obligations by slow degrees in the sense that they do what they can in regard to such obligations, celebrating personally or through another a certain number of Masses each month according to their means, the number to be determined in an equitable manner by the Delegate (Nuntio, Internuntio if the papal legate be one of these, which is always to be understood when we mention Apostolic Dele­ gate—our note), and in occult cases by the confessor. 738 FACULTIES OF THE APOSTOLIC DELEGATE However, those who have been guilty of such omissions shall be advised that if, while obeying the above directions, they should die before fully satisfying their obligations in this slower way, and cannot leave sufficient funds to meet said obligations entirely or in part, the Masses that remain to be said after their death may be · considered as condoned, provided they die repentant, and any de­ ficiency will then be supplied by the Holy Sec from the treasury of the Church. Likewise to permit in some exceptional case where altogether extraordinary circumstances make it seem expedient in the Lord to do so, that according to the capacity of the petitioner past Mass obligations be reduced to a certain number, provided the petitioner is not a repeated offender, the Holy See here also supplying for the remaining unsaid Masses from the treasury of the Church. 7. To admit to a discreet settlement for the internal forum those clerics who, possessing ecclesiastical benefices even with the care of souls attached, neglected to say divine office, and to condone in this way the income illicitly appropriated, the money accruing from the settlement to be expended for the benefit of some pious works to be determined by the Holy See. But in the case of priests who are so destitute that they cannot make even the above discreet settlement, to condone the income entirely, enjoining, however, an alms in proportion to the petitioner’s ability in an amount to be determined by the Delegate or the con­ fessor. But all these condonations shall be so transacted that no prejudice to the rights of third parties results therefrom by way of lessened daily distributions (for canons who were faithful in attend­ ing choir—our note). 8. To condone in the internal forum any income unlawfully derived from a benefice obtained invalidity by reason of real simony, but enjoining a proportionate and salutary penance in addition to an alms in an amount equal to the penitent’s means, and requiring that said benefice be vacated. But if for just and reasonable causes this cannot be done, especially if it is a parochial benefice, and there are no other priests who can be given the parish, to validate the title of the benefice itself. 9. To absolve, cither personally or through other qualified ecclesiastics of their appointment, all persons who now are in pos­ session of lands that once belonged to the Church, but which for many years have since been taken from the Church through civil legislation, and who now hold said lands cither in virtue of inherit­ ance from their ancestors, or by purchase or any other similar con­ FACULTIES OF THE APOSTOLIC DELEGATE 739 tract entered upon with former possessors, and to pronounce each of them competent to retain legally said lands as their own, and to dispose of the same freely either during life or by last will, but enjoining a congruous alms once and forever in favor of some church or pious work, the amount to be determined according to the pru­ dent judgment of the person who absolves them. 10. To dispense in particular cases when it is judged expedient in the Lord to do so, releasing from the law of abstinence on the day» prescribed for abstinence, even on fast days and during Lent. 11. To permit clerics and religious as individuals to anticipate the private recitation of Matins and Lauds immediately after the noon hour, and this at any time of the year but for a reasonable cause. 12. To commute because of weak eyesight, or for any other just cause, and as long as the cause continues, the obligation of recit­ ing the canonical hours into the daily recitation of the full rosary of the B. V. M., or into some other befitting pious prayers, but not exempting from the obligation of attending choir those who are held to choir. 13. To dispense in urgent cases from the need of academic degrees so as to enable clerics to acquire canonical prebends which call for those degrees in virtue of the laws of the pious foundation, provided the dispensation does not prejudice the rights of others. 14. To grant in accordance with the Const. Officiorum ac munerum the faculty of keeping and reading forbidden books and periodicals, observing the precautions and restrictions that seem necessary or useful in each case, and which are standard practise with the Holy Office. 15. To commute or dispense, in view of the reasons presented, all simple private vows, even though reserved to the Holy See, excepting vows whose dispensation may prove detrimental to the rights of third parties. 16. To dispense for a just cause from any oath, provided the right of another suffers nothing thereby. 17. To remit or condone in favor of poor penitents and for the forum of conscience only, a part of the goods stolen or retained by them, whenever the owner is unknown, and the case is occult; but with the understanding that what still remains in their posses­ sion of the ill-gotten goods, if any, be given, or its equivalent in money, or some part thereof, to be determined after considering the penitent’s poverty, be distributed among the poor of the place, or given to some pious local work if possible. 740 FACULTIES OF THE APOSTOLIC DELEGATE 18. To receive, or to delegate in each case another qualified ecclesiastic to receive, the denunciations of the crime of solicitation, but observing always the form and tenor of the instructions which the Holy Office is supposed to give. 19. To extend for a short time the faculties, indulgences and induits granted by the Holy See, but which expired before a timely request for their renewal was sent to the Holy See, but imposing the obligation upon the beneficiary to recur at once to the Holy See to obtain the favor of an extention, or the favor of an answer if the petition had already been sent but not in time. FACULTIES CONCERNING INDULGENCES 20. To grant a plenary indulgence six times a year, on the occasion of some solemnity, in favor of all the faithful of eithei sex who in the spirit of true repentance, having confessed their sins and received communion, visit a church or public oratory, and pray there for a while for the intention of the Supreme Pontiff. To grant the same indulgence also to the faithful who live in a place where it is impossible or difficult to go to confession, pro­ vided they substitute some other pious work in place of the reception of the sacraments, and at least with a contrite heart firmly purpose to confess their sins as soon as they are able. 21. To impart three times a year, on days of their own choice, but not in the same place, the papal blessing, according to the printed form inserted in these faculties, with a plenary indulgence to be gained by those who in the spirit of true repentance, having confessed their sins and received communion, are present at the bless­ ing, and pray to God for the propagation of our holy faith and for the exaltation of the Roman Catholic Church. 22. To grant, not in perpetuity but for a limited time according to their good judgment, a plenary indulgence on the occasion of the Forty Hours’ devotion in favor of the faithful who penitently confess their sins and receive communion; the indulgence to appic­ to the days appointed by the local Ordinary for that devotion, even though for a reasonable cause the Clementine Instruction is not observed in its entirety during the Forty Hours. 23. Likewise to grant, in the act of their conversion, a plenary indulgence to first converts from heresy returning to the bosom of the Catholic Church. FACULTIES OF THE APOSTOLIC DFLEGATE 741 24. To grant in individual cases, for a limited time, a plenary indulgence on the occasion of missions, the faithful observing the rules prescribed otherwise for gaining such indulgences. 25. To declare in harmony with c. 916 one altar of each and every church in the territory of his jurisdiction an altare privilegiatum, quotidianum, perpetuum. 26. To grant a 200 days’ indulgence to all who attend the sacred functions conducted by themselves, but only during their tenure of office. 27. To communicate to ecclesiastics the faculty of erecting the Way of the Cross with the attached indulgences; also of establishing pious sodalities of the Rosary, of Our Lady of Mt. Carmel, and of the Seven Sorrows, but with the understanding that this faculty is not to be exercised in places where there is a house of religious who by Apostolic grant enjoy the privileges in question. Also to empower ecclesiastics, under the restrictions just stated, to bless and impose the scapulars of said sodalities. 28. To declare that the indulgences hitherto mentioned be con­ sidered as applicable to the souls in purgatory. FACULTIES CONCERNING MARRIAGE 29. To dispense from the impedient impediments of the Code, observing scrupulously the conditions there laid down, especially with regard to dispensations from mixed religion, and notifying the Holy Office each year before Easter of the number of dispensations given the previous year from mixed religion, and other attendant circumstances. 30. To dispense . . . times, but for a grave cause from all diriment matrimonial impediments of ecclesiastical law, whether for public or occult cases, whether of major or minor degree, excepting the impediment of affinity in the direct line after the marriage which gave rise to the impediment has been consummated, and excepting the impediment of major orders and the solemn vow of chastity. As to the diriment impediment of disparity of cult, it is not allowed to dispense without observing the conditions pointed out in c. 1060-1064, and in a marriage of a Catholic with a Jew or Mohammedan, without first making sure that the infidel is free of a previous bond so as to remove the danger of polygamy, and that there is no danger of circumcision to the offspring, and, if a civil marriage must be gone through also, that it be a purely civil 742 FACULTIES OF THE APOSTOLIC DELEGATE ceremony without the invocation of Mohammed or the injection of any other such like superstition. If possible, the nupturients arc to make an offering according to their means, which the Apostolic Delegate shall send to the Holy Office if he dispenses from disparity of cult, or to the Congr. of the Sacraments if he dispenses from any other impediment. 31. To grant a radical sanation . . . times to validate mar­ riages invalid by reason of any diriment impediment just mentioned in n. 30, when it is morally impossible for the spouses to renew consent in the ordinary way, but informing the party conscious of the impediment of the sanation and its effects. The rescript of such sanation shall be carefully filed in the episcopal archives so that there will always be proof that the marriage was validated and the offspring legitimitized. But if the marriage was invalid because of neglect of the canonical form, the sanation shall not be granted excepting the case where the one party refuses to renew consent in the prescribed form, or if he were asked to do so, grave harm or danger would threaten the petitioner. And if the marriage was invalid because the canonical form was neglected in the case of mixed religion or disparity of cult, and the non-Catholic cannot be induced to renew consent according to canon law, the sanation shall not be granted unless the Catholic spouse assumes the obligation of striving as far as he can for the conversion of his consort and the Catholic education of the children, in which case the Catholic shall also be absolved from the censure he incurred if the marriage was contracted before a non-Catholic minister, and he shall be told that he was guilty of a very serious offense. [The faculties of papal legates of dispensing and granting sana­ tions in the case of marriages where mixed religion or disparity of cult is present, is seldom used in those countries, like ours, where the local Ordinaries themselves have the same faculties—our note.] FACULTIES CONCERNING OTHER SACRAMENTS AND SACRED RITES 32. To authorize simple priests (not necessarily dignitaries —our note) of approved learning and virtue to administer the sacra­ ment of confirmation in those districts only where there arc no bishops, provided they observe the rules of c. 781, §1 ; 782, §4; 784, and this authorization shall be given only for a limited time. faculties of the apostolic delegate 74Î 33. To permit one low Mass in public oratories on Holy Thursday, but only from year to year, or for a limited number of years. 34. To allow infirm priests, while their infirmity lasts, or aged priests, the induit of a private oratory in which to say Mass, but provided the usual canonical conditions laid down in cases of such induits be observed by the priests. 35. To allow priests of their jurisdiction the use of the wig when they celebrate Mass whenever there is a real need of it. 36. To grant an induit for individual cases to allow the celebration of Mass outside of any church or oratory, and to erect an altar in the open air, and this for a just cause in harmony with c. 822, §4. 37. To permit priests on a voyage, whether at open sea or on rivers of the interior, to celebrate Mass aboard ship on a portable altar, provided the place where Mass is celebrated has nothing indecent or unbecoming about it, and provided there is no danger that the chalice will be spilled. 38. To consecrate either in person or through simple priests of their choice, both immovable and movable altars that have lost their original consecration through some mishap, but observing the conditions laid down by the Congr. of Rites as contained in the Ritus et formula brevior for these cases. 39. To permit for a reasonable cause in particular cases, or for a limited time, that Mass be celebrated any time after three o’clock in the morning. 40. To allow for a limited time that a requiem Mass be celebrated two or three times a week in some church with the consent of the Ordinary, even on feasts of double rite, excepting doubles of the first and second class, all Sundays and holydays of obligation, privileged ferial days, vigils and octaves. 41. To grant priests, secular or religious, who suffer from poor eyesight the faculty to celebrate either the votive Mass of the B. V. M., or the requiem Mass, provided that, if there is need of it, they employ the services of another priest to assist at the Mass, and safeguarding the obligation they have of explaining the Gospel on the days prescribed, if they are pastors. Likewise to grant the same faculty to priests who are totally blind, but they must always have a priest or deacon to assist them at Mass, and the faculty shall not be granted until after a test has been made and they are found to fail in none of the rubrics. 744 FACULTIES OF THE APOSTOLIC DELEGATE 42. To allow the sick confined to their beds, and for whom there is no hope of an early recovery to receive communion once a week even before a month of illness has elapsed, permitting them to take medicine or something by way of drink (c. 858, §2). [Our bishops can dispense hospitalized sick. The Apostolic Delegate’s faculties are broader—oar note. ] To allow sick persons not confined to bed, but who suffer from some ailment by reason of which in the judgment of the doctor they cannot keep the fast without danger to their health, to receive communion once a week without fasting, i. e., by taking medicine or something per modium potus. [This faculty our bishops do not have, and it is one very frequently exercised by the Apostolic Delegate—our note.] 43. To permit in individual cases that a solemn high Mass, or even low Masses, be celebrated of a saint in churches in which the feast of a saint listed in the Roman martyrology, or otherwise recognized by the Holy Sec, is observed with solemnities, in the event the feast does not complement the office of the day, provided the feast does not concur with an office of a double rite, or a Sunday of the first class, the vigil of Christmas or Pentecost, the feast of the Circumcision, the octave day of Epiphany or of Corpus Christi, Ash Wednesday or Holy Week. 44. To authorize for the places of their jurisdiction in individual cases, or for a limited time, any priest to consecrate, according to the form of the Roman Pontifical, chalices, patens and altar stones, using sacred oils blessed by a Catholic bishop. 45. To bless bells and to consecrate churches, provided they inform the local Ordinary beforehand, and he does not object. FACULTIES CONCERNING RELIGIOUS 46. To take action in extraordinary cases of grave necessity concerning the state of any religious house, by cooperating through their advice and help with the superiors so that opportune measures may be applied to remove the abuses, and to lead the religious back to the perfection of their state, and notifying the Holy Sec as soon as possible if they believe any new regulations would prove useful to cloistered communities. 47. To dispense for a just cause at the request of the commu­ nity from the lack of dowry which is prescribed for Sisters or nuns in their religion. FACULTIES OF THE APOSTOLIC DELEGATE 745 48. To grant to diocesan Ordinaries in individual cases, or for a limited time, the faculty to place religious in charge of parishes when there is a lack of secular priests, but with the consent of the religious superiors, and with the proviso that at least two other religious live with the pastor, observing for the rest the rules of canon law in situations of this kind. 49. To permit nuns who are sick, or for other just and grave reasons, to live outside of their enclosure for a space of time to be left to the prudent judgment of the Delegate, but with the under­ standing that they always associate with, and be escorted by, some blood or law relative, or by some woman of good character, and that at home or elsewhere they lead a religious life removed from the society of men as it becomes virgins consecrated to God, safeguard­ ing the law of c. 639. 50. To dispense religious of either sex for the forum of con­ science only from the obligation of returning to their religion, and to permit them to remain in the world whenever they obtained an invalid declaration of the nullity of their vows, provided the invalidity of the declaration be occult, and with the understanding that they are still bound to the vow of perpetual chastity and to the substantial obligations of the other vows until they shall have received a special dispensation from the Holy See in their case, and if they are priests, provided they assume the garb of the secular ■clergy. FACULTIES FOR PERSONAL USE AND BENEFIT 51. To recite the divine office and to celebrate Mass according to the Roman ordo used by the priests of Rome, and to grant this privilege to the priests who live with them and are subject to them. 52. To reserve the Blessed Sacrament in the house of their permanent residence, provided a lamp burn constantly before the tabernacle, the key to the latter be faithfully guarded, and all other points be strictly observed which liturgical laws lay down in this matter. The chapel itself by permission of the Supreme Pontiff is considered a public chapel. 53. To administer the sacrament of confirmation in the whole territory of their jurisdiction, as well as during a sea voyage depart­ ing from or returning to the place of their mission. 54. To hear the confessions of all the faithful of both sexes in their territory, or on a sea voyage as above. 55. To gain the indulgences which they choose to impart to others in virtue of faculties granted to them. 746 FACULTIES OF THE APOSTOLIC DELEGATE Official note—The faculties listed above in nn. 20-31, also those in η. 1, 3, 18, 32, 46, 53, 54, 55, are not granted save to clerics in episcopal orders; therefore they are not to be understood as belonging to other clerics, and particularlj' to the Delegate’s auditor and secretary during the vacancy of the Delegation who may have been authorized to carry on the business of the Delegation, unless express mention of this is made, even though authority to manage the business of the Delegation had been granted together with these ordinary faculties. The Delegates shall take care not to extend beyond five or ten years induits which thej' are allowed to grant only for a limited time. Formula faculties added to the above on June 16, 1920. a) Whenever a vacancy occurs in any diocese of their jurisdic­ tion the Legates may grant to the diocesan administrator all faculties which the bishop possesses by law. b) Whenever there is urgent necessity, evident utility, and danger in delay, they may authorize the alienation of church prop­ erty, or the goods of pious causes, up to the amount of 60,000 francs in countries of Europe, and up to 100,000 francs in countries outside of Europe. c) The Legate may allow an illegitimate child to enter the seminary provided he is not the son of an adulterous or sacrilegious union, if in other respects the conditions for lawful admission to the clerical state be verified, but saving the duty of recurring to the Holy See to be ordained. d) In districts where pastors are few, or widely scattered, so that the needs of the faithful must be met by sending missionaries to such places, they may authorize the president or superior of the mission as pastor, and other missionaries as assistants, to exercise all powers in favor of the people residing in the missions, or visiting them, as are exercised by pastors or assistant pastors in their parishes. e) They may likewise grant the same president or superior of the mission, while these are in the place of their mission, the faculties which vicars-gcneral enjoy, and the faculties which c. 10431057 give to Ordinaries for marriage cases. Moreover, they may grant them the power to confirm within the limits described above in n. 32 of these faculties. It shall be the duty of the superior of the mission to advise the local Ordinary of the power he received from the Legate, and to receive from him, as far as this is possible, territorial limits for FACULTIES OF THE APOSTOLIC DELEGATE 747 his mission; and when his mission ceases he must report to the local Ordinary on the sacraments administered within the confines of the mission, no less than pastors must do as regards their parishes. Finally, the legates may subdelegate this power to the bishops within the territory of their jurisdiction, but only as individual cases arise that justify the subdelcgation. ADDITIONAL FACULTIES ENJOYED BY OUR DELEGATE 1. A decree of the Congr. for the Oriental Church empowers Apostolic Delegates, etc., to permit the faithful to pass from the Oriental to the Latin rite, and vice versa, but they may not permit priests to so transfer (Dec. 6, 1928; /Icta, 1928, 416). 2. According to Fr. Woeber in his dissertation “Interpella­ tions,” p. 131 (C. U. Press, 1942), our Apostolic Delegate has been authorized to dispense from the interpellations in individual cases, provided all means have been exhausted to find the infidel (even through newspapers if possible) and it results from a summary extra­ judicial investigation that he cannot be found, or that the interpella­ tions cannot be made without evident danger of grave harm to the convert or to the faithful in general. It is also stated by the same author that our bishops can ask the Holy See for the same faculties which will be granted for a certain number of cases (ibidem). 3. Our Apostolic Delegate in virtue of a rescript first granted June 20, 1924, may reduce Masses pro populo in poor parishes to those enumerated in c. 306. 4. He may permit loans, sales and the alienation of property belonging to a religious institute when the sum involved does not exceed half a million gold dollars, provided the norms made known to religious superiors by the Delegate on Nov. 13, 1936 be otherwise observed (cfr. Bouscaren: The Canon Law Digest for the text of that letter). 5. He may dispense religious from the Eucharistic fast and permit them to receive communion after taking something per modum potus et medicinae when the physician considers the keeping of the fast injurious to their health. 6. He may shorten or prolong the postulancy required by the Code. Note—The faculties described in n. 4, 5, 6 have been published in HPR. 1947, May, 663. INDEX Ab homine penalties, 682 Abandoned children, baptism of, 408 Abbot, nullius, J, 51, 91, 225 if., 373 Je regimine, 226, 373 primate, 295 Abduction, impediment of, 447, 482 Absentee voting, 151 Absolutio complicis, 69, 717 Absolution, general. 70 from censures, 83, 685, 699 ff, to dying strangers, 61, 69-71, 404 Abstinence and fast, general law on, 75, 530, 735 on Holy Wednesday, 76 z\busc of office, 673 Accessories in crime, 674 Accidents. and last sacraments, 61, 70-7! and imputability, 672 Accused in criminal trials, the, 613 if Accusation, false, of confessor, 69, 424 Acquired rights, 42 Ada, Apostolicae Sedis, 34-3 5. 44. 90. 205 et Decreta Cone. Plat. Baliim. HI, 44 Sandae SeJis, 44 Actor, actrix, 587 Actuary, 584 Ad beneplacitum nostrum, IJ7 Addresses of Rom. Curia, 206 Ad Limina visitation, 238 Admonition, a remedial penalty, 682 Ad nutum, 266 Adjutant vicar, 279 Administration, of vacant diocese, 52, 259 if of vacant parish, 278 Administration, of temporalities, in general, 5 69 if of a parish, 274 in religions, 57, 322 if by novices, 343-346 by professed religious, 353-35 5 of dowries, 336-337 Administrative, acts, 52, 204, 651 laws, 97 interpretations, 196, 204 Administrator, Apostolic, 224 diocesan, 259 ff of vacant parish, 263-265, 278 Admission to an office, 148 Adult, defined, 125 baptism of, 62, 63, 409 AJtena, 127 Advice and consent, 49, 60, 134 Aitvocalus diaboli, 639 Aetas superadulta, 463 Affidavits before marriage, 454 Affinity, 129, 467, 480-483, 728 African Collections, 24 Age, in general, 124 for the novitiate, 330, 730 for ordination, 431,730 Aggregation of confraternities, 405 A jure penalties, 682 Alienation of church goods, in general, 79, 570 ff. 715, 729, 746, 747 in religions, 32 5 Alienation of goods, by novices, 343 by religious. 3 53 Alimony, 450 Allocutions, papal, 191 All Souls' Day, 66. 426 Almsgathering, 58, 372, 562 Altar, kinds of, 520 consecration of. 52! portable, privilege of, 417 Society, 397 bibliography, 72-73 American, marriage laws, 467 canon law, 36-37 Amputated limbs, 73 Anchorites, 286 Angustia loci, 463 Anniversary feasts, 73, 517 Anticipating, vows, 60, 35! Matins and Lauds, 739 Apostates, from the faith, 58. 382, 705, 714 732 INDEX II burial of, 127 dying, II from religion, 455, 470, 472-475 Apostolic, Administrators, 51, 91, 224 blessing, 70 Camera, 214 Canons, 2 5 Chancery, 214 Collections, 22, 25 Delegates, 216-218 Signatura, 214 Appeal and recourse, 576 Appeals, 80, 606 Appellatio ab abuiu, 18, 617 Application of penalties, 617-61$, 660, 665 Appointments, in general, 148 of pastors, 265, 525 of religious superiors, 310 Approval of new Congregations, 57, 301 Arbitration, 610 Archbishops, 218, 220-222, 232 Archconfraternities, 403 Archdeacon, 243 Archdiocese, 221 Archives, diocesan, 52, 249, 613 parish, 276 Archpriest, 243 Arms-bearing, 181 Army and clerics, 181 Arranging for marriage, 451 ff, 4jg Ascetics, 286 Ashes, blessing of, 72, 270 Assault on clerics, 713 Assessor, 204, 570 Assessments, 79, 208, 564 Assistant pastors, 56, 280, 492 if, 496-499 Assistance at marriage, 492 if Auditor, 570, 583, 589, 597 Attempted marriages, 498, 707 Augustine, St., rule of, 296 Augustinians, 288 Authentic document, 276 Authority, of Code, 40-43 and precedence, 137 of religious superiors, 308 Bail, going, 180 Ballots, 132, 153 Baltimore, Councils of, 36, 46 Bandaged finger, saying Mass with, 65 Banning marriage temporarily, 467 Banns, of ordination, 439 of marriage, 453,455, 466 Baptism, 63 if., 407 ff. Baptismal certificate, 453 Basilica, 73, 516 Beatification processes. 82, 202, 632 if. episcopal, processes, 638 if. Apostolic processes, 642 ff. in causes of confessors, 63 8 ff. in causes of martyrs, 646 Begging, 372 Bcguines and Beghards, 392 Belmont, Abbacy of, 226 Benedict, St., 287, 296 Benedictine Declaration, 498 Benedictines, 287, 292 Benediction, with the BI. Sacrament, 76-77, 271 host, 76 Benefices, in general, 548-552 of novices, 344 lost by profession, 352 parochial, 53 reserved, 78, 265 bibliography, 78 Bequests, charitable, 79, 567 of Masses, 66, 567 Betrothals, 449-450 Bigamists, 435 Bill of complaint, 80. 591 of accusation, 614 Bination, 56, 64. 66, 415 Bishops, in general, 229 ff. residential, 231 titular, 231, 241 suffragan, 232 auxiliary, 241 coadjutor, 241 religious, 374 Bibliography, 51, 52 INDEX Blessed, title of, 634 Blessed Sacrament, 76 benediction with, 533 confraternity of, 401, 403 custody of, 76, 532 reservation of, 532 Blessing, defined, 515 Apostolic, 70 of ashes. 271 . of candles, 72,271 of cemeteries, 72, 515, 523 of churches 72, 515,517 of houses, 270 of palms, 271 last, 65 of graves, 526 of sacred furnishings, 534 Blind priests and votive Masses, 743 Bodily inspection in non-consummation cases, 624 Bond, clerics going, 180 impediment of, 476, 478 Books, censorship of, 77, 78, 276, 544 if. forbidden, 85, 207, 544 ff., 706, 724 Bone of contention, 594 Breviary, 41, 175 Breeialio Fulgentii Ferrandi, 25 Briefs, papal, 190 Secretariate of, 215 Brother and sister, marriage of, 483 cohabitation as, 511 Bull, papal, 190 Bulla Cruciata, 75 Bullaria, 34 Burial, in general, 522 ff. of amputated limbs, 73 of children, 74 of fetus, 73 Business and clerics, 182 Byzantine Church, 16 Calendar time, 103 Camera, Apostolic, 214 Candles, blessing of, 72 Canon law. general notion of, 2 ff. HI as mandatory, sovereign, supreme Jaw, 10 ff. collections of, 21-37 American, 36-37 Studies, 45 Canon, privilege of, 49, 169, 713 penitentiary, 254 theologian, 2 54 Canonical mission, 142 Canonization, 82, 201, 210, 632 ff., 648 Canons, Regular, 289 secular, 253 ff. Capuchins, 288, 323, 354, 372 Capuis, John, 32 Cardinals, 199 if, 204, 206, 305, 374 Careless Catholics, 62, 408 Carmelites, 288, 372 Cassock, 50, 178 Casuist, The, 4 5 Gums perplexus, 467 Catechetical instructions, 77, 314 Cathedral pastor, 54 Catholic Directory, 45 Catholic University Press, 46 Cacsarism, 17 Celebrant, and confession, 64 and Eucharistic fast, 207 Celebret, 56, 415 Celibacy. 177 Cemeteries, 74, 522 if. Censorship of books, 544 Censure, defined and classified, 684-689 absolution from, 685, 699 ff. bibliography, 48, 83-86 Ceremonial Congregation, 210 Cession of administration, by novices, 344 by religious, 353 Chalice, replating, 77, 534-535 Chamberlain, papal, 227 Chancery, Apostolic, 202,214 diocesan, 248 Chancellor, 52, 53, 248 Chapels, see Oratoties, of ease, 72-73 Chaplains, 28, 69, 281, 320, 399 IV Chapters, cathedral, 2$2 if. of canons, 2 5 3 ff. in religions, 57, 91,228, >06 Charlemagne, 26 Children, and church laws, 12 J If. and first communion, 420 and imputability, 672, 681 and Extreme Unction, 427 and Viaticum, 420 and domicile, 128 and marriage, 472 and non-Catholic education, 469 if., 709 of Mary, J97 Chirograph, 191 Choir. 254, 365-366 Chorepiscopi, 24, 241 Christian Brothers, 292,301 Christian doctrine, confraternity of, 403 Christmas midnight Mass, 65, 418, 730 Chrodogang, St., 2 53 Churches, law on, 515 if. Church and State, 17, 48, 210, 217 Church government, non-Catholic, 144 Churching of women, 72, 271 Circular letters, 190 Cistercians, 2S8 Citation, of pre-Codc sources, 30 if. court, 593 Civil, holidays and fast, 73 5 official and marriage, 8 5 law, and silence of canon law, 47 marriage, invalidity of, 491 if. documents, 600 Clandcstinity cases, 627 Clementines, 31 Clergy, Review, 45 Clericates, religious, 3 56 Clerics, defined, 139 rights and privileges of, 169 common duties of, 173 if. degration of, to lay state, 184 Ministering to the Sick, 289 Regulars of the Mother of God, 289 INDEX Regular of the Pious Schools, 289 Regular, 289 Cloister, 58, 362, 712,730-731 Clocks, 108 Coadjutor bishop, 241 Code of African Canons, 24 Code of Canon Law in general, 3 8 ff. Code Committee, authority of, 47, 93 CoJex, Vetus, 23 Collectanea, > 5 Collections, of canon law, 22 if. at church doors, 73 by religious, 61 Colored parishes, 54 Commendatio animae, 711 Commentarium pro Religiosis, 45 Communion, general law on, 420 ff. bibliography, 67-68 ff. Common error, 167 Common life, and secular clerics, 178 and religious, 360 Common law, of the Church, 4 marriage, 498-499 Competency, privilege of, 17! of the court, 578-579, 580 ff. Complaint of nullity, 607 Complicity in crime, 67 3 Compromise, election by, 155 and civil suits, 610 Conclusio in causa, 604 Concordats, 19. 42 Concubinage, 178, 661, 716 Concursus, 149, 268 Condemned, books. 8 5, 207, 544 ff., 706, 724 societies, 86, 7if Contempt of court, 593, 598 Conferences, spiritual, 314, 542 theological, 50, 176, 3 57 Confession, judicial, 595 Confession, sacramental, in general, 422 ff. of religious women, 57, 59, 317,730 of seminarians, 542 INDEX before marriage, 4 54, 4 56 bibliography, 69-70 Confessional, 69, 429 Confessors, as saints, 653 causes of, 638 â. Confirmation, sacrament of, 63, 412-414, 742 of elections, 14S, 154 Conflicts. between canon law and civil law, 19-20 between Code and pre-Code law, 43 Confraternities, 59, 60-61, 208, 397, 401-402 Congregationalism, 145 Congregations, Roman, 97, 201 ff. religious, 5 8, 290 ff. monastic. 287 Congresso, 204 Consanguinity, 129, 466, 478, 482-483, 728 Consecration, defined,5 1 5 of altars. 521.731 of churches, 72. 515, 516 of chalices and patens, 534, 731 of cemeteries, 5 15, 523 Consent, and advice. 49. 13 5-136 marriage, 485 ff. Consistorial Congregation, 207 Consistory, 199, 202 Constantine, donation of, 27 edict of, 16 Constitution, American, 19-20 of the Church. 51, 139-146, 187188, 229 ff. Constitutions, papal, 34 of religions, 58, 295 Consultors, diocesan, 29, 255 ff. parish priest, 249 ff. in religions. 307 Consummated marriage, 447 Contentious, V jurisdiction, 163 trials, 579 Contraceptives, 491 Contracts, in general, 567, 568 ff. between bishops and religious, 57 Convent schools, 59 Conventual Mass, 65, 254, 366 Conventuals, 372 Converts, baptism and reception of, 407, 706 desiring Protestant funeral, 74 and the novitiate, 330 and ordinations, 435, 437 and marriage banns, 457 bibliography, 61-63, 83 Cefia confessarii, 64 Corporations, ecclesiastical, 130 aggregate, 5 58 sole, 5 59 Corpus Juris Canonici, 32-33 Council, Congr. of, 208 Councils, collections of, 36 church, 227 in religions, 307 Courts, ecclesiastical, matters reserved to, 576 competency, of 578-579, 580 ff. collegiate. 586 delegated, 590 lower and higher, 582 ff. of first instance, 582 ff. of second instance, 588 of third instance, 589 of appeals, 5 88. 589 bibliography, 80-82 sec Trials Cremation, 74 Cresconius, 25 Crimes, see Offenses Crime, marriage impediment of, 477 483, 734 Criminal trials, 612 Croziers, 288 CST.2I8 Cultus Juliae ct lutriae, 633 Curia, Roman, 201 ff. episcopal, 242 ff. VI INDEX Custody of the Bl. Sacrament, 76, 532 Custom, pre-Code, 42 post-Code, 99-102 Dances and the clergy, 50, 73, 181 Danger of death, and confession, tee Absolution and marriage, 451,460,467 Datary, Apostolic, 214 Daughters of Rebekah, 86 Day defined and computed, 103 if. Daylight-saving time, 68, 105 Death, preparing penitent for, 71 proof of spouse's, 482 Deacon, joining novitiate, 60 performing marriage, 498 Dean, rural, 251 ft. Debts, contracting, 79, 326, 572, tee Alienations Decisions of R. Congregations, 190, 205 Declarations, of R. Congregations, 190 of marriage nullity, 456, 504 of intention before orders, 439 Decree, nature of, 97, 190, 191, 696-697 of Gratian, 28-30 Decretals, of Gregory IX, 30 Clementine, 31 extravagant, of John XXII, 32 extravagant, common, 32 false, 26-28 Decreta authentica of the S. C. Rites, 35,41 Decretalists, 31 Dccretists, 30 Decretum laudii, 293, 361 Dedication, anniversary of, 73 Defective, bodily, and holy orders, 435 marriage consent, 484 ft. Defendant in trials, 80, 5 87 Defender of the bond. 80, 5 85, 622 Defense or pleadings, 604 Degradation, 49, 184, 692 Degrees, academic. 211 Delegation, general rules governing, 164 ft. for marriage. 49, 493, 496, 497, 499 Delictum defined, 668 Denunciation, of offenses, 613 of an invalid marriage, 623 Departure from a religion, 377-391 Desecrations, 517 Dicta Gratiani, 29 Didacbe, 23 Didaicalia, 23 Dignitaries or prelates, 254 Dimissorial letters, 430, 438, 440 Diocese, of origin, 429 loss of, 3 52 acquiring proper, 127-128 Diocesan, administrator, 259 consultors, 52,255 ft. domicile, 127-128 Diplomatic, corps, 202 relations, 215, 217 Dismcmbration of parishes, 5 51, 562 Dismissal, of religious, 383 ft. of seminarians, 543 Disparity of cult, 207, 469-473, 741 Dispensation, general norms governing, 46 ft, 110124 from banns, 454 from marriage impediments, 459 ft. 724-728, 741-742 from irregularities, 434, 734, 737 from religious vows, 58, 379 from fast, divine office, etc., lee Fast, etc. from vindictive penalties, 699-703 delayed, 467 error in, 467 Dissolution of marriage, 501 ft, 507 Disqualifying laws, 89, 93 Divine law, and canon law, 2 ft. marriage impediments of, 458 Divorce, 82, 501 ft., 507 Documents, authentic. 276 INDEX as proofs in trials, 600 ff. Domestic authority, JOS Domicile, acquisition and loss of, 127-128 and proper pastor, 54, 269 for marriage, 49, 499 Dominative authority, 308 Dominicans, 288 Donations, by novices, J44 by religious, 353 by eccl. administrators, 571 Doubtful laws, 89 Doubts and supplied jurisdiction, 167168 Dowry, 57, J24, 336-337, 730, 744 Drunkenness, and responsibility, 672, 681 Duties, see Obligations Durum of c. 2 54, 85 Duels, 528, 733 Dying strangers and sacraments, 61, 409 Easter, duty, 67, 421 season. 37, 68, 421, 424 Ecclesiastical Review, The, 45 Ecumenical Councils, 190, 227 Edict, public, 593 Egbert of York, 26 Egypt, hermits of, 286 Elections, in genera), 49, 1 32, 150 ff. in religions, 3 10 ff. Electric light, 76 Elopement, 45 5 Eminence, title of, 199 Enclosure, 58, 362-364, 712, 730-731 Engagements, 449 English collections of canon law, 26 Enrollment in pious associations, 399 EpbirneriJes liturgicae, 45 Epikeia, 122 Epileptics, 71, 43 5 Episcopalianism, 143 Episcopus proprius for ordination, 71,429 Epistolae pontificiae, 190 ER. 45 vu Error, in general, 135 common, 51, 168 in rescripts, 93, 113 and responsibility, 93, 13 5, 671, 681 Eucharistic fast, 64-68, 420 ff., 735736, 744-747 Examinations, junior clergy, 176, 3 57 before ordinations, 71, 438 Excardination, 73, 173 ff. Excellency, title of, 222 Exceptions, judicial, 80 Exchanges, 572 Exclaustration, 58, 378 Excommunication, S3, 686-687 Execution of court sentence, 608 Exemption, as a clerical privilege, 171 of regulars, 58, 293 from church laws in general, 92-93 Exorcisms, 514 Expenditures, 573 Experts, 599 Exposition of the Bl. Sacrament, 5 33 Exploratio voluntatis, 338, 346, 350 Ex-religious, status of, 60, 332, 3 63, 372, 380, 382, 390 External, forum, jurisdiction of, 162 relations of religious Congr., 57 Extrajudicial processes, general notions of, 651-652 in removals and punishments, 617, 660 ff. bibliography, 82-83 Extreme Unction, 70-71, 427-428 Ex-war priests, 50 Eyes, defective, 71 Faculties, confession, 422 diocesan, 46 indulgence, 426, 741 preaching, 536 expired. 69, 167-168 supplied, 69, 167-168 quinquennial, see Habitual faculties False decretals, 26-28 Fast and abstinence, 75, 208, 530-531, 735,739 νπι Fait, Eucharistie, 4$, 64, 41$, 420, 735-737, 744-747 Favors, 109-122 Fear, and responsibility, 93, 133-134, 672, 6Π and marriage consent, 489, 490 Feeble minded and communion, 67 Fee simple, 3 58 Fees and stipends, 54, 5 5, 564-565 Fenians, 711. 733 Ferendae sententiae penalties, 679 Fetus, baptism of, 408 burial of, 73 Fights, prize, 181 Fillippint Sisters, 393 Finances, church, 79 Financial reports, see Reports Fines, 690 First, Communion, 67, 68, 270 cousins and marriage, 450 tonsure, 13 9 Flags in church, 73 Flight from religion, 382 Footnotes of Code, 40, 46 Foundlings, baptism of, 408 homes for, 5 52 Fontes Cod. Juris Can. 21, 40 Force, and legal liability, 93, 133, 672 and marriage consent, 489, 490 Foresters, 399 Forged decretals, 26-28 Form, canonical, of marriage, 492-495 Formal, house. 293 laws, 97 trials, 579 Forms for marriage dispensation, 464 ff. Forty Hours, and banns, 456 and funerals, 74 Forum, privilege of. 170, 710, 713 competent, see Courts Fowl, sea, 75 Francis. St., 296, 305 Franciscans, 288, 372 INDEX Fraud, and liability, 134 and marriage consent, 485 Free appointment, 149 Freedom, of religion, 19 from novitiate impediments, 337-338 from ordination impediments. 437 ff. from marriage impediments, 451 ff. and marriage consent, 489. 490 Freemasons. 85, 527, 711, 733 Free-will offerings. 566 Frog legs, 75 Fugitives from a religion, 58, 714 Funerals, general rules of, see Burial of children, 74 a pastoral right, 270 fees, 526 during Holy Week, 74 from chapels. 74 bibliography, 73-74 Gallicanism, 17 Garb, clerical, 50. 178, 716 Gasparri, Cardinal. 40 Gelatine. 75 Gencological tree, 466 General law, 4, 88 Glass beads, 426 Glossae, 30 Good Templars, Order of, 7! 1 Goods, temporal, of Church, nature of, 55 5 kinds of, 5 56 owner of, 560 acquisition of, 561 administration of, 568 bibliography, 78-79 Goods, of novices, 344 of religious, 3 53 of religions, 322 of parishes, 272 Government in religions, 57, 304, 315 Grace, title of, 222 Gratian Decree, 28-30 Grave incommodum, 93, 122, 672 Graves, blessing of, 526 Gravis et diuturna poenitentia, 85, 704 Gregorian, Decretals, 30 INDEX Masses 55, 66 Habitual faculties, 165 ff., 119, 246, 723-747 Habit, religious, 361 Hadrian Collection, 25 Half brother and sister marriage, 483 Hard of hearing penitents, 70 Harduin, Fr. John, 36 Headaches and fast, 68 Helena case, 504, 507, 630 Heresy, 83, 705, 732 Hermits, 286 Hierarchy, 141 if. High Mass, mutilated, 65, ser Stipends Holidays, civil, and fast, 73 5 Holydays, 37, 208, 529 Holy, Office, 208 orders, 71, 140, 160, 429-441 Name Society, 399 Saturday, 68, 421 Thursday, 65,730, 74} water and sacramentals, 72, 513 Wednesday, 76 Homiletic and Pastoral Review, 45 Honesty, public, 481, 483 Hospitals, 56, 282, 552 HPR. 45 House, religious, 293 formal and non-formal, 29} erection and suppression of, 57, 300, 302 of novitiate, J88 pious, 552 ff. Ignatius of Loyola, St., 291 Ignorance, and liability, 83, 84, 89, 671, 681 and marriage consent, 488, 489 Illegitimate children, who considered, 448 and the novitiate, 332, 729 and holy orders, 435, 747 how legitimated, 448 ff. Immunities, clerical, 49, 208 Impediments, to the novitiate, 330 ff. to holy orders, 71,433 ff. to marriage, 456-483 Impedient impediments, 4 57, 468-472 IX Impotency, 475 Imprimatur, 544 Impulse, 673 Imputability, 670 ff., 681 Inability, see Force, Necessity Incardination, 49, 71, 173 ff., 430 Incola, 127 Incompatible offices, 150 Inconvenience, grave, 93, 122, 672 Incorporation, ecclesiastical, 130 In dcioluiivo, 576 Index of forbidden books, 3 5, 78, 546, 707 Indissolubility of marriage, 444 Indulgences, 69, 70, 425-426 Induit, diocesan, and religious, 372 workingmen’s, 75 see Privileges Infamy, 691 Infants, 125, 671 In favorem fidei cases, 504, 507, 630 In forma commissoria, 115 Infidel defined, 446 Inventories, 534 In partibus infidelium, 241 Insane persons, and legal liability, 128, 67! and domicile, 128 and marriage consent, 490 Inspection, judicial, 600 Installation of pastors, 54, 268 Institution, pious, 5 52 ff. chaplain of, 281 canonical, 148 Instructions, nature of, 97, 205 pre-marital, 454 In suspensivo, 576 Interdict, 83, 93, 687, 690 Internal forum, 162, 213 Internuncios, 216 ff. Interpellations, 503, 506-507, 747 Interpretation of laws, 93-96 Interrogations, pre-nuptial, 458 Interstices. 432 Invalidating, laws. 89. 93 impediments, 457 X Investigation, prc-marital, 451, 4$6 of criminal charges, 612 Investments, 324, 569, 573 Irish, Collection of canon law, 26 Ecclesiastical Record, 4$ Irremovable pastors, 54, 266, 268 Irregularities, 71, 433 fL, 734, 737 Jello, 75 Jesuits, 289 Jew, marriage with, 726 Jewess, Mass for, 64 Joinder of issues, 595-595 Joscphism, 17 Jubilee year, 70 Judicial jurisdiction, 161 Judge, ecclesiastical, 383 presiding, 386 Jurisdiction, defined, 140, 160 if. kinds of, 161-166 exercise of, 161-166 supplied, 167 Jurisdictionalism, 17 Jurist, The, 45 Jus, advocat iae, 18 cavendi, 18 exclusivae, 18 Kerosene oil, 76 Key, tabernacle, 76 Knights, of Cape and Sword, 215 of Columbus, 399 of Pythias, 86.771 Teutonic, 289 Laicized clerics, 184 Laity, the, 397-405 Language parishes, 54 Laiac sententiae penalties, 679-681, 720723 Last wills, 79, 345, 3 54, 567 Lateran Pact, 194 Latin and English prayers, 62 Law, divine, canon and civil, 2 fi. Laws, ecclesiastical, in general, 88-89 Lawgivers in the Church, 5, 90 INDEX Lawsuits and administrators of goods 570 Lawyers, 80, 587 Lay, brothers, 38, 60 religion, 293 help, pastor’s jurisdiction over, 59 offices unbecoming to clerics, 183 trusteeship and clerics, 183 state, return of clerics to, 184 Lazarists, 393 Leases, 79 Legacies, pious, 208 Legal adoption, 469, 472, 482-483 Legates, papal, 216-218 Legislative jurisdiction, 161 Legitimacy, 448, 450 Liber Sextus, 31 Limina visit, 238 Linens, church, 77 Little oilice and choir, 365 Liturgy and canon law, 3, 41 Loans, making and contracting, 572 Local Jaws, 48 Lordship, title of, 222 Lunula, 76 Luther, 217 Macabres, 86 Major, person defined, 125 causes, 118 degree impediments, 438 Officials in R, Curia, 204 orders, 476 superiors, 295 Malice and imputability, 671 Mandata for censures, 702-704 Mansi, Archbishop, 36 Marriage, as a contract, 443 ends and properties of, 443-444 as a sacrament, 444 and the Church, 445*446 and the State. 445-446, 450, 467 of infidels, 446, 450 of Protestants, 446, 450 kinds of, 447 preliminaries to, 451 IT. impediments to, 456-483 solemnization of, 501 if. INDEX coment, 484 ff. validation of, H 2 if. out of church, 81, 81, 501 if., 708 a pastoral right, 271, 45>3 time, place, registration of, 496 and the novitiate, 330 and holy orders, 457 by proxy, 492 dispensations, 208, 459 if., 724-728, 741-742 mixed, 464, 465, 469-475, 501, 724, 741 instructions, 454 trials, 619-627 Marsilius of Padua, 17 Martyrs, causes of, 640 Mass, in general, 64-66, 415-419 Sunday, 75 t>ro pofntlo, 52, 5 5, 56, 67, 275, 418, 747 founded. 64, 575 votive, for blind priests, 745 at sea, 745 after 5 a. in., 745 Meat, tee Fast Mechitarists. 288 Medicinal penalties, tee Censures Medicine, practice of, 182 Meditation, daily, 175, 561, 542 Membership, church, 124 Mendicant Orders, 288 Mercedarians, 288 Metropolitans, 220 Midnight, computing, 48, 65 Midwives, 408, 599 Military service, 181 Minims of St. Francis, 288 Minor, persons, 125, 128. 455, 472, 672, 681 impediments to marriage, 458, 728 Clerics Regular, 289 Ministry, sacred, 261 Mission, canonical, 145 Missionary countries, 225 Missionaries of St. Vincent de Paul, 592 Mixed, Jaws, 88 marriages, 469-475 matters, 14 xi religion. 207 Monastery, 287 Monastic, Congregation, 287 Order, 289 Xfonarchy, Church as, 51, 187 Monk, 287 Monsignor, 227 Month defined and computed, 105 ftMoral, laws, 88 persons, 130-155 theology and canon law, 5-4 Mortgages, 79, 572 Mofu proprio, 112, 189 National parishes, 54 Near-East privileges, 50 Necessity and responsibility, 95, 672 Neglect of pastoral duties, 662 Negligence and responsibility, 671 Nomination to offices, 156 Nonage, 474, 4S2 Non-Catholics, and the Holy Office, 207 discussion with, 77 prayers for, 84 Masses for, 416 sacraments to dying, 416 marriage with, 469-475 as marriage witnesses, 492 as court plaintiffs, 625 Non-consummated marriage, 447, 628650 Non-residence, 660, 716 Nose spray, 68 Notaries, civil, 182 cccl. 249, 584 Notorious offenses, 670 Novices, 529 ff. Novitiate, house, 55 8 year, 58, 559 Nuncios, 216-218 Nuns, 289, 294 Nuptial, blessing, 495,751 jubilee, 501 Mass, 501 XIX . Oath, against Modernism, 547 as juridical proof, 80, 602 Obedience, clerical, 50, 175 religious, 359 Obligations, common, of clerics, 175-184 of religious, 558-567 Obstruction of diocese, 258 Occupations forbidden to clerics, 50, 180, 182 Occult, cases, 461-462 impediments, 457, 461 irregularities, 454 offenses, 670 sinners, 420 Odd Fellows, 86, 711 Offenses, defined, 668 attempted, 674 frustrated, 675 public, notorious, occult, 670 bibliography, 85-86 Official, or judge, 5 83 Office, divine, and secular clerics. 175, 759 and religious, 565-566, 739 Little, in choir, 365 Office, Holy, 208 · Offices, ecclesiastical, 147-157 of the R. Curia, 214-215 Oil stocks, 77 Oils, holy, 406 Old age and Extreme Unction, 70 Oleomargarine, 75 Olivetans, 228 Oracle, papal, 191 Oratio imperata, 65 Oratorians, 292 Oratories, 72, 518-520 Orator, oratrix, 587 Oratory, induit of private, 417, 745 Order, religious, 292 of St. Gregory, 215 of St. John of God, 288 Orders, power of, 140, 146, 160 INDEX major and minor, 208 xs a form of command, 96 ff. holy, 7K 429 if. Ordinary, jurisdiction, 165 ff. confessor of Sisters, 518 Ordinaries, 49, 160-161, 295 Ordination, or holy orders, 71, 429 ff. trials, 631 Oriental, Congregation, 211 monks, 296 novices, 552 parishioners, 54 priests, 50 Orientals, and the Code. 4! and divine law, 41 and forbidden books, 4! and the Code’s sacramental law, 52 and Latin bishops, 52 and Latin pastors, 54 Original jurisdiction, 161 Orphanages, 5 52 Ovariotomy. 482 Pachomius, St., 286 Pagans and marriage impediments, 450 Pallium, 222 Pallottinc Fathers, 595 Papal, chapel, 210 letters, 34, 214 court, 194 States, 194 household, 227 Pardon, see Remission Parishes, 55, 54, 78, 261-265, 550 Parish priest consultors, 52, 55, 249 ff., 654 ff. Parishioner defined, 265 Panicles, consecrating, 64, 67, 532 Parr conventa, 587 Parties to a trial, 587 Particular law, 88 Passion. dropping, when binating, 65, 751 and imputability, 673 Passionins, 292, 301, 369 Pastoral theology and canon law, 5 INDEX Pastors, general law on, 53-54, 262-267 retiring, 82 religious, 277, 57$ dispensing power of, 75 removal and transfer of, 655-659 Patriarchs, 193, 218-220, 232 Patronage, right of, 78, \56 Pauline Privilege, $02 ff., 628 Peculium, 360 Penal laws, 84, 88, 70$ ff. Penalties, defined, 676 right of Church to employ, 666-667 spiritual and temporal, 677 determinate and indeterminate, 678 l.s. and /.j., 679-681 d jure and dZ> bomine, 682 medicinal or censures, 684-689 vindictive, 689-693 application of, 617, 696 remission of, 699 ff. bibliography, 83-86 Penances, canonical, nature of, 693 adequate, for censures, 69. 8$, 704 Penitentiary, S., 46, 202, 212 Pensions, 78 Peregrini, ree Transients Perfect society, 10 Perfection, religious, 284, 3$8 Periculum matrimonii civilis, 463 Persons, physical, 124 moral, 130 Per rum cuttut, 657 Petitions to Rome, 206 Pew rent, $4, 566 Photius, 24 Physical force and liability, 93, 133, 672 Piarists, 289 Pictures, holy, 78 Pious foundations. $73 Society of the Missions, 392 unions, 308, 397, 401-402 Place, tee Domicile Placitum regium, 18 Plaintiffs, 81. $87. 623 Pleadings, court, 604 XIII Plenary councils, in general, 228 of Baltimore, 36-37, 90 Politics and the clergy, 181, 182 Poloris plaster, 68 Ponent, 60$ Pontiff, Roman, 186-19$ Pontificals, 23$ Poor Clares, 29$ Pope, 186-19$ Portable altar, 6$, 73, 417 Portiuncula indulgence, 42$, 426 Postulation in elections, ]$$ Postulancy, 60, 329, 747 Postulator of causes, 639, 644 Poverty, vow of, $8. 3$9 Praegnantia mulieris, 463 Prayers, aloud at Mass, 65 after low Mass, 6$ in the vernacular, 76 Preaching faculties, 77, $36 Prebends, 255 Precedence, 136, 296, 401 Precepts, 47, 48, 96, 683 Precious goods, $46 Pre-Code induits, customs, laws, etc., 40 ff. Prefect, Apostolic, $1, 223 ff., 263 in religious clericates, $8, 337 Prelates, defined, 22$ major and minor, 22$ honorary. 21$, 22$, 227 nullius, 226 costumes of, $1 domestic, 227 Preliminaries to marriage, 451 Premonstratensians, 288 Presbyterianism, 144 Presbytery, Roman, 201 ff. episcopal, 242, 264 Prescription, 79, 566 Presentation to offices, 156 Presumed death, 482, 628 Presumption, judicial, 81, 601 of law enjoyed by marriage. 449 Primacy, papal, 28, 88. 187, 201, 216 XIV Primary unions. 40$ Primates, 195. 218-220, 232 Principals in crimes, 673 Private, Mass, 65 Oratory, 210, 520, 743 Privation, of office, 158, 691 of burial, 73, 527 Privileges, in general, 117 flF. clerical, 169 0. religious, 58, 367 ff. Prize fights, 50 Priests, and Ember Saturdays, 76 at non-Catholic funerals, 74 Procedure, judicial, and administrative or ex­ trajudicial, in general, 651 ff. in clandestinity cases, 627 in presumed death cases, 628 in Pauline Privilege cases, 628 in non-consummation cases, 628 in favor of the faith cases, 630 bibliography, 80-82 Procurators, financial, 306, 540 general, in religions, 306 at trials, 48, 80, 587 Profession, of faith, 77, 547 religious, 58, 347-357 Promises in mixed marriages, 460, 465, 470-473 Promoter, of the faith, 639 of justice, 80, 584, 615 ff., 622 Promulgation of laws, 88 Proof, of baptism, 63 of the sacraments in general, 61 in court trials, 595-603 Propaganda, S. Congr. of, 209 Property, tee Goods, temporal Prospective laws, 89 Protestants, ice Non-Catholics Prothonotaries, 224, 227 Providentnsima Mater Eccleiia, 39, 46 INDEX Province, ecclesiastical, 220 ff. religious, 29.3, 302 Roman, 193 Provincial, councils, 90, 228 superiors, 295 Provocation, 673 Proxies, at baptism, 63, 409-410 at marriage, 492 Public, church law, 4, 7-1 5 honesty, 481, 483 impediments to marriage, 457 offenses. 670 Publication of trial acts, 603 Purchases, 573 Purificator, 77 Putative marriage, 448 Quacrcla nullifa/ii, 607 Quarta funeraria, 527 Quasi, domiciles, 127 parishes, 263, 265 Questionnaire, for visitation of religious. 59 for interrogating spouses, 452 for prospective postulants and nov­ ices, 60, 335 for bishop’s report to Holy See, 238 for religious superior's report to Holy See, 313 Quinquennial, reports, 207, 238, 313 faculties, 723 ff., 736 Races, horse. 181 Rainbow girls, 85 Rank and precedence. 137 Ratum non-consnmmatuni cases, 81, 208, 447, 502, 506, 628 ff. Raymond of Penafort, St., 30 Rebuke, uc Reprimand Rector and rectory, 265 Reconciliation of churches, 517 Recourse, 82, 576 Redemptorists, 292, 301, 369 Redress against court sentences, 606 ff- INDEX Reduction, to the lay «ate, 49, 184 of Mass obligations, 21 J, 574, 729, 7J7 References, Code, 40 Referendarii, $90 Regalism, 17 Registration, of baptism, 410 of confirmation, 414 of ordination, 441 of marriage, 496 of profession, 350 Registers, parish, 53, 56, 276 Regulars defined, 294 Reinstatement, 608 Relics, 35, 76, 77, 533 Religion defined and classified, 292-293 Religious, defined, 294 domicile of, 128 state, 284, 286 profession, 347 bishops, 57-60, 374 pastors, 265, 266, 375 parishes, 54, 551 S. Congr. of, 208 seminaries, 544 Remarriage, 495, 508, 511-512 Removal of pastors, 266, 65 5-658 Renewal, of profession, 3 50 of sacred species, 76, 532 Repeated offenders, 673 Reports, financial, of religious, 326 of cccl. administrators, 570 Remission of penalties, in ordinary cases, 699-700 in urgent cases, 700-704 Representation and precedence, 136 Reprimand, as a remedial penalty, 683 of the accused, 614 Reser vatio in pectore, 199 Reservation, of Bl. Sacrament, 76, 5 3 2 of censures, 685 of sins, 423 xv Reserved, cases, 69, 83, 86, 423 parishes, 265 Rescripts, general law on, 46, 110-116 Residence, or domicile, 92, 127 and secular clerics, 179 and religious, 312, 364 and pastors, 272 Resignation of offices, 50, 157 Responsibility, or imputability, 670674, 681 Restitutio in integrum, 80, 60S Retirements, 50 Retreats, and secular priests, 175 and religious, 361 and seminarians, 541 before novitiate, 338 before profession, 346 before ordination, 440 Retroactive laws, 46, 89 Revalidatio matrimonii, 463 Reverential fear, 490 Reus defined, 5S7 Rhythm theory, 456, 491 Rite, change of, 129, 747 Rites, S. Congr. of, 209 Roman, courts, 212 curia, 201 if. , Congregations, 3 5, 203 tf. decisions, 204 Rota, 202, 203, 205, 215, 589 Rotary Club, 50 Rules and regulations, nature of, 9g Rural deans, 53, 251 Ruthenians, 46 Sacraments, in general, 61, 406 S. Congr. of, 207 Sacramental marriage, 447 Sacramentels, 72, 512 ff. Sacred goods, 556 Sacristans, lay, 77 Saint, title of, 634 Salary of pastors, 54, 271 Sale, of church goods, 70, 572 of blessed objects, 72 XVI INDEX of cemetery lots, 74 sec Alienation Saliva ceremony, 62 Salt, baptismal, and Euch. fast, 68 Sanatio in radice, 3 5 5, 466, 509 if., 726, 728,742 Scalzetti Fathers, 289 Scandal, repairing, 84, 703-704 Scapular, imposing, 731 Schismatics, 41, 62, 91, 501, 705, 732, see Non-Catholics Schools, 77 Sea fowl, 75 Seal of confession, 717 Season, Easter, 67-68, 421 general ordination, 440 Seasonings of meat, 75 Secretary, lay, in parish office, 50, 56 of State, 215 Secularization, 58, 60 Second Orders, 289 Self-defense, 673 Seminaries, law on, 75, 356, 357 ff. S. Congr. of, 210 Seminarian, secular, and the novitiate, 60 Seniority, and precedence, 157 and elections, 132 Sentence of court, 605 if. Separation, of Church and State, 18 ff. of married people, 501 Serédi, Cardinal, 40 Server, Mass, 64-66, 416 Servîtes. 288 Servitium diocesis, 33 3 Signatura, Apostolic, 214, 590 Sick calls, 56, 57 Simony, 54, 61, 406 Simple vows, 293 Sisters, defined, 294 confessions of, 59, 317-319 Sister and brother, marriage of, 483 cohabitation as, 51i ■ Societies, condemned, 83, 711, 733 parish, 53, 55, 60 pious, 397 ff. secret, 83 without vows, 209, 392-395 Sodalities, 60-61, 397 Soldiers, proof of death of, 482 Solemn vows, 293 Solemnization of marriage, 492 if. Solicitation, 69, 746 Somaschi, 289 Sons of Temperance, 711 Sources, of canon law, 4-5 of Code law, 40 Spanish Collection, 25 Species, sacred renewal of, 67, 532 profanation of, 710 Spiritual director, in pious associations, 400 in seminaries, 542 Sponsors, baptismal. 62, 63, 409 confirmation, 414 Stability, vow of, 287 Standard time, (05 State and Church, 17 if. Stations, 70, 426 Statutes, nature of, 2, 98 Step-daughter, marriage with, 483 Sterilization, 456, 482 Stipends, Mass, 64, 66, 208, 417 Stocks and bonds, 182 Stole fees, 53, 54, 271 Striking clerics, 49, 169, 713 Stupor and responsibility, 672 Studies, seminary, 541 Subdeacon, acting as, 71, 436 Subdelegated jurisdiction, 165-166 Subsidy, charitable, 382 Substitute vicar, 279 Suffragan bishops, 221 Suicides, burial of. 64, 74, 527 Sulpicians, 292, 293 Summary, trials, 81,626 Sun time, 48 Superiors, religious, 57, 59, 305 tf. Supfdex libelIns, 591 Supplied jurisdiction, 167, 498 INDEX Support of church, 79 Surgery, practice of, 182 Surveillance, 684 Suspension, as a censure, 688 as a vindictive penalty, 691 ex informata conscientia, 663-668 bibliography, 82-84 Swiss Congregation of St. Maurice, 288 Sylvestrians, 288 Synod, diocesan, 52, 228, 256 Synodal, examiners, 52, 249 ff. judges, 615, 654 if. Tabernacle key, 76 Tametsi decree, 498 Taverns, 181 Telephone, and dispensations, 461,468 and absolving faculties, 705 Temporalities, see Goods, temporal Territorial laws, 89 Tertiary Congregations, 291, 500 Testimonial letters, 53 5, 457, 545 Testimony of witnesses, 596 if., 624 Teutonic Knights, 289 Thcatincs, 289 Theaters, 50, 181 Theodore of Canterbury, 26 Theresa, St., of Lisieux, 63 9, 649 Thesaurus resolutionum, 3 5 Things, ecclesiastical, defined and clas­ sified, 406 Third Orders, 60-61, 289, 397, 399, 401-402 Throat malady, and communion, 69 and ordinations, 71 Tiara, 194 Time, how reckoned, 46, 103-108 Title, ordination, 432 Titular, bishops, 241 archbishops, 222 feasts. 73, 517 Tonsure, first, 139, 430 clerical, 178 Trading and clerics, 50 xvn Transfer, to another diocese, 49 to another religion, 377 from office, 159 of pastors, 658 to another rite, 747 Transient, defined, 127 and local laws, 46, 47, 75, 92 Trappists, 288 Traveler, see Transient Trent, Council of, 33-34 Trials, in general, 578-610 civil, 610 ff. criminal, 612 ff. marriage, 619 ff. ordination, 631 ff. formal, 579 summary, 579, 626 in religions, 388-389 bibliography, 80-82 Tribunal, see Courts Trinitarians, 288 Trullan Collection, 23 Trustceism, 558 Trust, holding goods in, 5 5 8, 567 Twilight zone in mixed matters, 14-16 Unconscious strangers, sacraments to, 61, 428 Uniates, see Orientals Union of Church and State, 17 Unity of marriage, 454 Unworthy Catholics, marriage with, 61, 472 Ursulines, 289 Vacation, and pastors, 5 5, 272, 279 and clerical garb, 50 Vacancy, in offices, 149 in episcopal see, 258 Vagi, 92. 127, 128, 269, 455 Validation of marriage, 508 ff. Vallombrosians, 288 XVIII Vatican, Gey, 194 Council, 38 The, 19 Venerable, title of, 634, 646 Veneration of saints, 632 Vestments, 72 Vetui Codex, 23 Viaticum, 68, 420 Violation of churches, 72, 517 Vicar, Apostolic, 51, 223, 263 actual, 277 administrator, 278 adjutant, 279 capitular, 259 cooperator, 280 forane, 53, 244, 251 ff. general, 48, 52, 53, 245 ff. parochial, 277 ff. religious, 277 substitute, 279 Vicarious jurisdiction, 161 Vincentians, 393 Vindictive penalties, 83, 689 ff. Violation, of sacred places, 517 of enclosure, 733 Virgins, 286 Vititatio ad limina, 238 INDEX Visitation, of diocese, 52, 239 of religious, 57, 313 Visitors, sec Transients Vocation, clerical, 543 religious, 329-330 Voluntary jurisdiction, 163 Voting, 152 ff. Vows, religious, 58. 348 ff., 379 Wanderers, or vagi, 92, 127, 128, 269 Washing of church linens, 53 5 Water, baptismal, 62 Way of Cross, 70, 426 Wednesday of Holy Week, 73 5 Week defined, 103 White, Fathers, 392 meats, 75 Wife, domicile of, 128, 621 Wig at Mass, 743 Witnesses, 76, 81, 492, 596 ff. Woodsmen of World, 86 Workingmen's induit, 531, 735 Worship, meaning of, 633 Year defined, 103 Y.M.C.A., 86